HL Deb 13 June 1989 vol 508 cc1293-341

4.50 p.m.

Consideration of amendments on Report resumed.

Clause 104 [Water quality objectives]:

Lord Ross of Newport moved Amendment No. 123C: Page 113, line 28, at end insert ("not later than the transfer date").

The noble Lord said: My Lords, we move from broadcasting quality back to water quality. I promise to take very much less time than was spent discussing broadcasting. Clause 104 deals with classification of the quality of water. I understand that a classification system already exists within the 10 statutory bodies. Under the clause the Secretary of State can serve a notice on the authority setting out the various classifications described in the previous clause besides a date on which they are to come into force.

This amendment seeks to fix the date at that on which the authorities change status to plcs—in other words the transfer date—which one assumes, barring accidents, may well be November 1989 rather than, as I believe the Government have in mind, 1992. The amendment seeks to bring the transfer into force in November 1989 or thereabouts whenever the companies become plcs. That is the objective and I look forward to hearing what the Minister has to say. I beg to move.

The Earl of Balfour

My Lords, I thought that the National Rivers Authority was to carry out its survey in 1990.

The Earl of Caithness

My Lords, in responding I can only reiterate the three overwhelming considerations which, in our view, lead me to suggest to the House that the amendment is not an appropriate one. First, we regard it as essential that the NRA should be up and running and able to advise the Secretary of State as to what the objectives should be, as my noble friend Lord Balfour has just reminded us. In fact we debated this matter in connection with an earlier amendment. The objectives constitute an important long-term commitment for the authority and it would be unreasonable not to have its full advice in setting them.

Secondly, we regard it as appropriate that there should be a full measure of public consultation which again would be precluded by this amendment. And finally we believe it right that the Secretary of State should have available the results of the national river quality survey, which will begin next year, in setting the objectives. I accept that it is open to the noble Lord, Lord Ross of Newport, to question what will be the interim position until the new formal objectives are in place. During the interim period the NRA will have available, and will act in the light of, the informal objectives which the water authorities currently operate. These are sufficient and adequate for the interim period and nothing is lost by this procedure.

The nub of the matter is however quite simple. It is that if the NRA is to have a say (as it should) in the setting of the objectives, they must be set after transfer. But I give the noble Lord, Lord Ross of Newport, the assurance that, subject to the need for public consultation and due consideration by the NRA, we shall proceed as expeditiously as possible with the setting of the objectives. Much is gained by following this approach and, as I have said, nothing is lost by it.

Lord Ross of Newport

My Lords, it is helpful to have that statement from the Minister in the Official Report. I thank him for it. If I had spoken longer I would have pointed out that, even if the existing classifications were to be taken as gospel and brought into effect as I suggested, they could have been amended by this self-same Clause 104 at subsection (4). I take on board everything that the Minister said. I welcome his remarks. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [General duties to achieve and maintain objectives, etc.]:

The Earl of Arran moved Amendment No. 124: Page 114, line 29, after ("above") insert (", or in a notice under section 30C of the Control of Pollution Act 1974,").

The noble Earl said: My Lords, I move this amendment on behalf of my noble friend. It will require the Secretary of State for the Environment and the National Rivers Authority to exercise their control of pollution powers to ensure, so far as is practicable, that not only the statutory quality objectives for England and Wales are met, but also that those for Scotland are met. The principal effect of this amendment will be to require the Secretary of State and the NRA to take into account Scottish water quality objectives when considering whether or not to grant a consent to discharge effluent into waters near Scotland. I beg to move.

The Earl of Balfour

My Lords, I am rather intrigued by this amendment. I am grateful to my noble friend Lord Arran for giving some explanation of it. The proposed new Section 30C appears in Schedule 23 at the bottom of page 305. Clause 105 has almost identical wording to that of the proposed new Section 30D at the bottom of page 306. If it is necessary for these functions to extend on both sides of the Border then I suggest that Clause 105 of the Bill should be applied to Scotland by means of a final clause to the Bill. If that is not desirable, your Lordships might wish to look at the end of Clause 105(1). I shall read the last part of Schedule 23 where the proposed new Section 30D(1) states that, the water quality objectives specified for any waters in a notice under section 30C above are achieved at all times". If that is to be accepted I wonder whether Clause 105 should not be included in the last part of what I have just read out concerning Schedule 23 in order to remove any doubt. Equally, and while I am still on my feet, as I understand the position Schedule 23 dealing with the Control of Pollution Act 1974 appears to apply to Scotland only. Perhaps I may remind your Lordships that in Schedule 27 at page 399, Sections 31 to 42 of that Act are being repealed so far as England is concerned.

However, Scotland will be covered in this schedule. I do not want to create doubt but I think it should be quite clear that the Secretaries of State, acting jointly, cover both sides of the Border. It should be borne in mind that the Tweed and its tributaries are outside the scope of the NRA. They are regulated by the River Tweed commissioners and are subject to Scottish fishery laws. However, the River Esk, sometimes referred to as the South Esk, although it is almost entirely in Scotland, is within the area of North-West Water. I am sorry that my questions are rather technical but we should make quite certain that this area of pollution is adequately covered on both sides of the Border.

5 p.m.

The Earl of Arran

My Lords, my noble friend Lord Balfour was good enough to let me have in writing both the points that he has raised in the past two or three minutes. We too do not wish there to be any doubt about this provision. My noble friend asked why the amendment is necessary when there is in Schedule 23 a comparable provision applying to the Secretary of State. The point is that Clause 105 applies the duty to have regard to Scottish river quality objectives to the NRA, which is not covered by the Schedule 23 Scottish provisions. My noble friend also asked why we are repealing the provision in the Border Rivers (Prevention of Pollution) Act 1951 for joint boards of pollution control officials. The fact is that no such board has ever been established, so there is no evidence of a need for the provision. The English and Scottish authorities fully consult each other on matters of common interest, despite the absence of any formal consultation mechanism. I hope that both those explanations satisfy my noble friend.

The Earl of Balfour

My Lords, I am most grateful. On Question, amendment agreed to.

Lord Addington moved Amendment No. 124A: Page 114, line 32, at end insert— ("(3) Save as provided by Chapter 1 of Part III of this Act, after the transfer date, no right to pollute water shall be lawful.").

The noble Lord said: My Lords, this amendment is an attempt to clear up a point that is left over by common law. At present common law allows landowners whose land is situated on a river bank to discharge effluents into it. If he does this in the same way for more than 20 years, he acquires a legal right to pollute that river even if it adversely affects people downstream. These rights will of course be subject to the statutory controls imposed by the Control of Pollution Act 1974 and now Clause 104 of the Bill. Thus if consents are granted for less pollution than has been discharged, up until that point he must comply with them and his common law rights will not act as a defence against prosecution in a criminal case.

However, these rights still exist, either because they are considered unimportant or for some other reason. In these more environmentally conscious days these existing rights are no longer relevant and they encourage people to pollute rivers rather than to take measures to improve the quality of our river system. Thus these rights should surely be abolished. I beg to move.

Lord Renten

My Lords, I can see what the noble Lord is getting at, but, with great respect, I do not think that his amendment is acceptable. There is no right anywhere to pollute water, even under ancient common law. Of course there were some forms of pollution which in common law people did not trouble to enforce. One wishes that they had done but there has never been a right to pollute water. Therefore, the amendment is itself a contradiction. What the noble Lord is perhaps getting at is that after the transfer date no pollution of water shall be lawful. But even that does not help us because no pollution of water is lawful anyway. It is a question of controlling the amount of pollution, which in broad terms is written into the Bill, and finding the degree of pollution and so on. In any event, even if one accepts the noble Lord's point, I do not think that the amendment is necessary to achieve the object that he has stated.

The Earl of Caithness

My Lords, I have listened with great care to the noble Lord, Lord Addington, as indeed we did in Committee. I can assure him that we have looked at the matter further between then and today. My noble friend Lord Renton answered his point far better than I could. However, perhaps I may try to add to what my noble friend said.

The essential position is that a private right to pollute—gained, for example, through the making of a discharge over many years—confers no right to pollute without a consent under Chapter I of Part III of the Bill. However, what it does is to secure the discharger from being sued by riparian owners and others in respect of damage done to them. As my noble friend Lord Renton said, it is a pity that some people did not take action earlier. In addition I would put it to the noble Lord that it would be inappropriate in this Bill to interfere with private civil rights.

Lord Addington

My Lords, having heard what the noble Lord, Lord Renton, and the Minister have said, I accept that I do not have quite enough legal skill and that I perhaps should have taken greater care over the drafting of the amendment. Before I withdraw it, I should like to say that there is still the danger that if we still have these rights the balance of a river could still be affected. That is what I was trying to get at but I accept that the amendment is not quite appropriate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 124B not moved.]

Clause 106 [Offences of polluting controlled waters etc.]:

Lord Addington moved Amendment No. 125: Page 115, line 15, leave out ("not less than three months' "). The noble Lord said: My Lords, this amendment together with Amendments Nos. 126, 127 and 128 have been tabled because in Committee the Government said that we had a point when we introduced amendments to give a permissive power to introduce an immediate enforcement on an order to stop a discharge. The Government thought that the wording did not fit well enough into the Bill. I hope that our wording today is more appropriate and that the Minister will be able to accept the amendment. I beg to move.

The Earl of Balfour

My Lords, I am particularly concerned about Amendments Nos. 125 and 126, which leave out the words, not less than three months' ". Clause 115(2) deals with a code of practice and refers back to Clause 106(2)(a) and (b). I should not like that time limit of "not less than three months" to be restrictive to any greater extent than it already is under the codes of good agricultural practice in Clause 115.

Lord Hesketh

My Lords, the Government do not agree with my noble friend Lord Balfour. We agree with the points which were made in Committee and which the noble Lord, Lord Addington, has reiterated today. We are fully persuaded that there needs to be an emergency procedure for the NRA to operate in the case of "relevant prohibitions" under Clause 106 when the normal three-month period for their coming into effect could give rise to unacceptable risks. It is for that reason that we fully support the amendment moved by the noble Lord, Lord Addington. We also hope that it will be accepted by the House.

On Question, amendment agreed to.

Lord Addington moved Amendment No. 126: Page 115, line 18, leave out ("not less than three months' ") On Question, amendment agreed to.

Lord Addington moved Amendment No. 127: Page 115, line 27, at end insert— ("(2A) A notice given for the purposes of subsection (2)(a) or (b) above shall expire at such time as may be specified in the notice; and that time shall not be before the end of the period of three months beginning with the day on which the notice is given except in a case where the Authority is satisfied that there is an emergency which requires the relevant prohibition in question to come into force at such time before the end of that period as may be so specified."). On Question, amendment agreed to.

Lord Addington moved Amendment No. 128: Page 115, line 28, leave out from ("Where") to ("for") in line 29 and insert (", in the case of such a notice for the purposes of subsection (2)(a) or (b) above as (but for this subsection) would expire at a time which is or is after the end of the said period of three months, an application is made before that time"). On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 128A: Page 116, line 5, at end insert— ("(6) Notwithstanding the fact that proceedings in respect of an offence under this Section may have been commenced or are pending, whenever the Authority apprehends that a contravention of subsection (1) of this section (whether a new contravention or a repetition or continuation of one which has already occurred) is likely to occur, the Authority may apply to the Court and the Court (if satisfied of the matters complained of by the Authority) may make an Order designed to prevent, remove or otherwise eliminate the grounds of complaint, or such other Order as the Court thinks fit.").

The noble Baroness said: My Lords, this issue was raised during the Committee stage of the Bill on 23rd May. I have therefore been briefed on the matter since I believe that there was general support for the objective behind the amendment. However, I should like to address two difficulties which were raised in Committee. The first was the technical and legal difficulty. While supporting the spirit of the amendment, my noble friend Lord Renton made the point that difficulties may arise if the NRA seek to take civil proceedings at the same time as criminal proceedings. After taking advice on the matter, the contents of Amendment No. 128A have been revised so as to take account of my noble friend's point.

The second issue which was raised was in connection with the Minister's response. He indicated that there were sufficient powers available to the NRA by virtue of Clause 114 of the Bill (anti-pollution works and operations). However, having examined more closely the provisions of that clause, I should also point out to the Minister that Clause III is not adequate since it requires the NRA to carry out works and to rely upon the fact that it may be able to recover the expenses involved from the polluter, whereas my amendment would require the polluter to carry out the necessary works to prevent pollution actually occurring That seems to me to be more sensible.

The example given in Committee illustrates the point well. It concerns a recent major pollution incident on the rivers Little Ouse and Sapiston at Drinkston, near Bury St. Edmunds in Suffolk where pig slurry polluted 40 kilometres of river and resulted in the deaths of thousands of fish. Sadly this occurred in a river which the water authority had only just restocked. Moreover, although the farmer concerned is to be prosecuted, he has already been fined by the courts on four separate previous occasions for causing pollution and therefore it seems unlikely that this will deter him in the future.

There is a real need for Parliament to give the NRA the necessary powers to seek an injunction from the courts to prevent a pollution. That of course would have to be subject to the usual safeguards and the ultimate decision on whether an injunction should be granted would be a matter for the judge to decide. At present, the authorities have to rely upon bringing criminal proceedings which are often slow—indeed, cases can take anything from six to 12 months to come before the courts—and which result in fines averaging only £500 to £1,000 being imposed. That is an inadequate deterrent compared with the profits which can be derived from continuing to pollute.

I have no doubt that such powers would only be rarely used, nevertheless they would be available to the NRA in appropriate circumstances. I am advised that such a facility was indeed available to river authorities by virtue of Section 3 of the Rivers (Prevention of Pollution) Act 1951, but that it was somehow removed by the Control of Pollution Act 1974. Therefore I urge the Government to give the NRA this facility which would clearly demonstrate the Government's previously declared commitment to the creation of a strong NRA with teeth. This amendment is consistent with the theme that the polluter pays. I beg to move.

Lord McIntosh of Haringey

My Lords, I am thoroughly convinced by the arguments put forward by the noble Baroness. I hope that she has got the wording right and that if she has the Government will accept what she said. However, if the wording is not right, I hope that they will find a way to put it right.

Lord Renton

My Lords, I too should like to support this amendment. The need for it arises from the ancient rule that when criminal or civil proceedings are both possible the criminal proceedings must be disposed of first, unless statute provides otherwise. However, in a case such as the one which this amendment covers we could find that there may be a delay—the usual kind of delay which, I am afraid, takes place in criminal proceedings—and therefore we must bear in mind that there may also be a time-lag.

There may also be the uncertainty of success in the criminal proceedings, bearing in mind the technicalities and details of the Bill. However, if the water authority is able to go to the civil court for an injunction, then that time-lag and that uncertainty will matter much less. It really is in the public interest that an amendment along these lines be accepted.

The Earl of Onslow

My Lords, I should also like to support this amendment. It seems to me that if someone disobeys an injunction issued by the civil courts, the powers of the civil courts on this occasion would be much stronger and much more drastic and draconian than those of the criminal court. Therefore, incidents such as the one described by my noble friend Lady Blatch, where a thoroughly irresponsible farmer has been umpteen times fined only small amounts of money, could perhaps be prevented. That would enhance the Government's newly-found green image.

5.15 p.m.

Lord Hesketh

My Lords, my noble friend Lady Blatch raised the point in Committee that present control of pollution legislation does not provide for injunctions to be sought in the sort of cases to which she referred. I have to say, as we said then, that this raises significant issues, and that we do see some merit in the arguments the proposers are putting to us.

We are considering the issues carefully, but my noble friend may understand if I add that it will inescapably take more time. I may be able to offer a firm view at Third Reading, but I have to say that in view of its potentially wide implications, were we to decide that something should be done, it might need to be pursued within wider environmental legislation which may come forward in a later Session.

I am sorry that I cannot be more strident on this occasion, but I hope that my noble friend Lady Blatch will recognise that we are making a wide and significant proposal.

Baroness Blatch

My Lords, I am encouraged by the Minister's reply. I think that it is in everyone's interest that where there is positive or wilful pollution some kind of swift and positive action is taken. I think that expectations have now been considerably raised. I also believe that there is support on all sides of the House for making the polluter pay where it can be proved that there has been a wilful or positive breach of conditions.

I therefore hope that my noble friend will be able to find an appropriate form of words. I am encouraged that something will happen between now and Third Reading. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 [Authority for discharges and other defences for the purposes of section 106]:

Baroness Blatch moved Amendment No. 128B: Page 116, line 13, leave out paragraph (b).

The noble Baroness said: My Lords, this issue was raised by Mr. Tim Boswell MP, and others, in another place on 22nd March 1989. My noble friend Lord Cranbrook also made reference to it during the Second Reading of the Bill in this House. He also moved the present amendment in Committee on 23rd May.

As the House will know, the whole country is keenly interested in the protection of our environment and that obviously includes the prevention of pollution of our rivers. I readily accept that there must be, as indeed the Bill recognises, valid defences available to those who discharge into our rivers provided, of course, that those discharges are made in accordance with the permissions and consents granted by the competent pollution control authority, which in the future will be the NRA.

However, it is equally important, if not more important, that there should be no loopholes in the legislation which would enable an unscrupulous discharger to take advantage of the law. Sadly, I believe that to be the present situation under the Control of Pollution Act 1974 in the case of waste disposal sites. With the Bill, the opportunity exists to plug that loophole—Clause 107(1)(b)—in the case of site disposal licences.

As the House will be aware, when a site disposal operator wishes to set up a new site he applies to the local authority, not the water authority, for a site disposal licence.

As a related aside, as a former member of Cambridgeshire County Council, I was distressed by a system which allowed an applicant to apply to build a golf course by infilling. The planning application for the golf course was granted, despite the fact that the intention was to operate a waste disposal site for many years. Because planning permission had been granted, the waste disposal licence was automatic, and that is on a site which has a history of leachate problems and poor management. However, at the end of that waste disposal operation, however many years it takes, there is no requirement to build a golf course. If the amendment does anything to ensure that, if there are any breaches in the running of the site, they will be dealt with, I hope that it will receive the support of the House.

Once the disposal officer has obtained that licence he is free to set up his new site. The House will be only too well aware of the problems that have been experienced in recent years with such sites; for example, the lack of after-care by owners, who often complete a site and go away. The problem can continue for many years. However, it is to the problem of pollution from such sites that I now wish to refer.

I am aware of such problems that emanate from the seepage of toxic waste through teachings from such sites. That has resulted in pollution not only of adjoining watercourses but of (groundwater) public water supplies, as well as the destruction of fish stocks. An example is to be found at Rushton in Northamptonshire.

I therefore welcome Amendment No. 363, which was moved by the Government in Committee. It goes some way towards meeting the objective of the original amendment, which is now retabled in its original form. I say that it goes some way because it has the effect of removing the defence afforded by Clause 107 in the case of discharges under Clause 106(1)(b) and (d). However, I regret to have to say that it still does not meet the substantive issue raised by the amendment; namely, leachates from waste disposal sites which do not take place in the form of discharges but are more in the nature of seepages from such sites.

Consequently, as presently drafted (even allowing for government Amendment No. 363) the defence afforded by Clause 107(1)(b) would still be available in respect of an offence under Clause 106(1)(a).

In my view, it would be wrong to allow site operators to continue to enjoy immunity from prosecution by the NRA for causing pollution merely because they held a site disposal licence. I therefore commend the amendment to the House. I beg to move.

Lord Renton

My Lords, I am not sure about the amendment. I should like to hear what my noble friend on the Front Bench has to say. I must point out that if it were accepted, then on Third Reading we should have to make some consequential amendments; for example, the next four lines (19 to 22 inclusive) would have to be left out and the definition in subsection (9) would also have to be left out.

Lord Hesketh

My Lords, the effect of the amendment would be to remove the exemption available in the Bill as drafted in respect of all pollution offences in Clause 106 provided by possession of a waste disposal licence under Part I of the Control of Pollution Act.

We believe that the amendment goes too far. The Bill now provides that such exemption shall not apply in respect of discharges of trade or sewage effluent, or other matter, on waste disposal sites; but we believe that an exemption should be available in respect of casual entries of polluting matter under Clause 106(1)(a), because those are essentially matters which will be covered by the site licence granted to a disposal site. The water authorities now, and the NRA in due course, are statutory consultees able to require—subject to the final view of the Secretary of State—inclusion in the licence of any particular conditions that they consider necessary for preventing water pollution. If the amendment were accepted we would have the unsatisfactory result that a site licence holder could be prosecuted for pollution even though he was complying with conditions of a licence (agreed by the NRA) intended to prevent such pollution. That surely cannot be right.

Half the amendment is already achieved by the clause as it stands: that a site licence should not provide a defence in respect of discharges under Clause 104(b), (c) and (d). That will mean that the NRA will have direct control of all discharges on waste disposal sites and that the dischargers will need a consent under this Act. That is, I suggest, the right balance, is consistent with the position in current legislation, and is as far as we can go at this point.

As we said in Committee, we recognise that there have been criticisms of the working of the pollution control arrangement for land waste sites and that the water authorities have concerns about them. Those have of course been expressed recently in a report of the Environment Select Committee in another place. Nevertheless, we believe the present relationship between water pollution and land waste to be basically sound, and that would be substantially reproduced if the clause remains unchanged.

However, the inter-relation of the separate controls on land waste and on water pollution control is clearly a matter to which the Government may need to return in the context of proposals for integrated pollution which may be the subject of legislation in another Session. All the considerations raised can be looked at in that context. That is the context in which to do it rather than here. As I have said, we do not believe that the issue can be pursued here without producing unacceptable conflicts between regulatory systems.

For those reasons I hope that my noble friend will be able to withdraw the amendment.

Baroness Blatch

My Lords, there appears to be agreement that there has been a difficulty and that the management of the sites could be improved. I am grateful to my noble friend for his answer. I clearly need to read the Bill more carefully to see whether the objectives that I wish to achieve by the amendment can be achieved by the Bill as drafted or by the changes that may be brought about by the Government. The pollution control arrangements are not sufficiently stringent. I hope that the new arrangements and the powers given to the NRA, particularly by injecting conditions into the licence, which I believe to be important, will be sufficient. I shall read carefully what my noble friend has said and re-read the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Newport moved Amendment No. 128C. Page 116, line 35, leave out subsection (4).

The noble Lord said: My Lords, we are dealing with Clause 107 which relates to exclusions in respect of pollution. We discussed waste from disused coal-mines in Committee. I must confess that I cannot remember what decision we reached. Clause 107(4) states: A person shall not be guilty of an offence under section 106 above by reason only of his permitting water from an abandoned mine to enter controlled waters".

We may live to regret allowing that provision to remain in the Bill. I have an expert next to me who tells me that the coal board has been trying to deal with the problem for a long time. The 1981 report Coal and the Environment states: At some places, after a time, the water rises to the surface and breaks out as an uncontrolled flow. Unfortunately, due to the much longer retention time (possibly for a number of years) and greater contact area with the coal workings, the water can absorb the considerable amount of metals in a soluble form including iron and aluminium. It also develops a highly acidic character. When released to the atmosphere, where it can absorb oxygen, and with dilution of the acidic strength by other more alkaline waters, the metals are thrown from solution and deposited as oxide sludge commonly known as ferruginous or ochre sludges. Where older workings have also been 'heated' or are on fire a much greater uptake of metal may occur. The resulting pollution can be very serious, can persist for years and can be costly to deal with".

That is presumably the reason why the Government say that this could be an exclusion area because it is a very difficult subject to deal with. Surely we ought to bring it to finality in some way or another. If it is not acceptable totally to delete the clause, I think that we need something rather more definite from the Government to the effect that a period of time will be given when pollution from disused coal mines will no longer be permissible. It is obviously a very serious matter. I very much hope that the Government will bring forward some definite statement to that effect. I beg to move.

5.30 p.m.

The Earl of Balfour

My Lords, before the noble Lord, Lord Ross, sits down, I should like the opportunity of asking him to look at the bottom of page 123, Clause 114(4). Incidentally, Clause 114 should have the title, Anti-pollution works and operations", which was left out in the reprinting. Again, this refers to the great problem of abandoned mines. The trouble is that very often they have been in existence for many years and nobody knows who the owners are. I have considerable concern that if the amendment is accepted it will somewhat alter the position in Clause 114.

Lord Renton

My Lords, my noble friend Lord Balfour, has raised the very important point that we must be consistent in the Bill. What most impresses me about the amendment is that it carries the name of the noble Lord, Lord Ezra, with his tremendous experience of the mining industry.

However, I should have thought from my knowledge, such as it is—and I went down many coal mines when I had a responsibility for safety in mines many years ago—that generally speaking it is impossible to prevent water from seeping from an abandoned mine into underground deposits upon which we may rely for drinking water. The noble Lord, Lord Ross of Newport, raised a very important point when he mentioned dangerous chemicals being left in an abandoned mine. I should have thought that was the point on which we should concentrate rather than trying, as is the effect of the amendment, to make it an offence and to make any seepage from an abandoned mine into a contravention. I should have thought that we should be careful about that. We might be attempting the impossible.

The Earl of Radnor

My Lords, I wish briefly to support the amendment. I brought forward a similar amendment in Committee and raised the point that it is rather difficult to tell exactly what is an abandoned mine and whether, first the minerals had stopped being worked and then it was abandoned or whether, as my noble friend Lord Renton just stated, the mine was abandoned when it was used for storing waste of one sort or another. There is a very good case for playing safe and taking subsection (4) right out of the Bill. There is a danger here from abandoned mines that have no waste in them—and I believe there are examples of that in the country—and a great danger from a mine which is not considered abandoned because it has been filled up with rubbish or toxic waste of one sort or another. Therefore I give my support.

The Earl of Arran

My Lords, this is a difficult area to which many noble Lords have drawn our attention. However, my first observation must be to draw noble Lords' attention to the terms of the exclusion, in particular the reference to "committing". It does not cover cases where a person may have caused such a discharge, which remains an offence. Secondly, it should be recognised that the number of persons who might in the absence of this exclusion be liable under Clause 106 is potentially wide, and includes a variety of persons with rights over land who nonetheless could not reasonably be expected to take positive action to prevent the minewater discharges in question. It is broadly for those reasons that these exclusions have been on the face of legislation for some considerable time, and why we believe it would be inappropriate to accept the amendment proposed, removing this exclusion.

However, perhaps noble Lords will allow me to say something about the underlying problems. The problem of abandoned mines is an intractable one. There are abandoned mineral workings in many parts of the country of varying degrees of antiquity. They share a number of complex and difficult features. Among these the most significant is that it is very often not known who owns the mining rights and who is therefore strictly responsible. Moreover in many cases the actual workings which are the cause of the difficulty date from long ago and there are questions as to how far there is still a reasonable line of accountability. A further but not irrelevant consideration is that the cost of the remedial and preventive works required to end the discharges can be very considerable indeed.

These considerations combine in our view to make it inappropriate to remove the exemption proposed. But because we are not amending the legislation I would not wish your Lordships to conclude that we are unconcerned about the problem or that we are giving no consideration as to how it should be tackled. That is certainly not the case.

However solutions must in our view be sought elsewhere. We shall, we believe, need to look to policy instruments of a different kind. One possibility, which noble Lords may know has been widely canvassed, is a new policy instrument analogous to derelict land reclamation grants in respect of long abandoned mines. We shall examine and consult upon options of this kind in conjunction with the NRA. In respect of mines which may in future become redundant, my right honourable friend the Secretary of State for Energy, in particular, does I know have a concern to ensure that there are appropriate provisions for after-care, and we shall be considering whether more can be done than at present.

It will be clear from what I have said that we believe that new, long-term approaches will be required to solve this problem. Nothing in this Bill will preclude them. Given the nature of the solutions which may have to be sought, it will be evident that we believe that other legislation in due course may provide a better vehicle in the event that any new powers are required. The assurance I am giving your Lordships is that this is a problem we are considering carefully, in various contexts, and one that we shall be pursuing.

I hope that this is of some assistance to the noble Lords proposing the amendment. I hope they will also feel that, for the reason I have given related to the nature of the offence and liability for it, this amendment is not the appropriate means of tackling the problem and that, in the light of my assurances, the noble Lord will not feel the need to press it.

Lord Ross of Newport

My Lords, first, perhaps I may apologise to the noble Earl, Lord Radnor. I could not remember who moved the amendment at Committee stage although I realise that I heard the debate. I am grateful again for his support this afternoon; it was he who raised the matter in the first place.

I believe that most noble Lords who have spoken agree that we must try to bring the matter to finality some time in the future. Therefore the Minister's response was at least helpful. I accept—and I said so in my speech—that perhaps to remove the exemption in its entirety straightaway was possibly too drastic and too expensive. As the noble Earl, Lord Balfour, pointed out, it would be very costly indeed.

Nevertheless, with privatisation of the coal industry possibly on the cards and further possible closures, I regret to say, of the mines (and goodness knows, there have been enough closures in recent years), it will be a continuing problem. Obviously I shall not press the amendment to a vote at the moment; I take on board what the Minister said. The Government will have to take action in this regard, if not in this Bill in other Bills to see what can be done to improve the situation. This matter will be a continuing cause of pollution. That is what everyone in this House is desperately trying to avoid. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 [Deposits and vegetation in rivers etc.]:

The Earl of Radnor moved Amendment No. 129: Page 117, line 49, at end insert— ("(4A) Nothing in subsections (1) and (2) above applies to anything done that constitutes good farming or good fishery management practice.").

The noble Earl said: My Lords, Clause 108 makes it an offence to clear silt above sluices in rivers so that the resulting mud, as I called it in Committee, drifts downstream. The clause also makes it an offence to cut vegetation within the river and on the banks without using one's best endeavours to recover that vegetation.

There are two exceptions to this provision; one is navigation or flood prevention and the other is drainage. My amendment seeks to add to those two exceptions two more—good fishery management and good farming. I seek to add those further two exceptions for very definite reasons. I feel that the clause, as it stands, is both impracticable and unreasonable. It also produces a conflict in law. I believe that to be the case, but I stand to be corrected.

The clause covers many of the rivers in England. We are dealing with the alkaline streams, which have a large growth of various water weeds. At times those water weeds have to be cleared to enable the streams to be fished. One of the reasons that we want these rivers to be in good order is so that they can be fished for people's enjoyment. Weed has to be cut at certain times of the year. At the present time water authorities have put up booms to try to remove weed. This is totally unsatisfactory. I ask noble Lords to imagine themselves standing in a smallish stream in waders cutting the rununculus reed. That reed would float away as one cut it. It is impossible to use one's best endeavours to prevent it floating away. One simply has to let it float on downstream. The same must apply to the person who has a garden beside a river and who has some rank growth at the edge of the river. That person may cut it with a hover mower or other machine, and the rank growth will fall into the river. It is ridiculous to assume that it is possible to endeavour to recover that vegetation.

As regards growth of vegetation, there is a great impracticality here. There is a peripheral reason not to drag out all weed and put it on the bank. This point was brought up on an earlier occasion in a completely different context. It concerns the adhesion of coarse fish eggs to weed. Eggs of coarse fish such as roach and other species hatch extremely quickly. If the weed is cut and it is allowed to float down the river, the eggs will in all probability hatch on the way downstream. Someone downstream will benefit from that hatching. I must emphasise that if the weed is deposited on the bank, nothing much will happen.

So much for fishery management. More important still perhaps is the matter of farm management. As I said in Committee, there are water meadows in Wiltshire and Hampshire. I could add that they also exist in Dorset. I think I mentioned that about 12 farms had such meadows. However, I think I am right in saying there are more than 12. The whole system of running water meadows depends on clearing silt from in front of sluices. One cannot get away from that. In Committee my noble friend on the Front Bench said that the small ditches that are situated in the water meadows themselves would not come under the term "controlled waters". However, that is not the point; that is not where the sluices are situated. The sluices are situated in the big carriers which sometimes, but not always, double as drains. However, that depends on how they are set up. This clause, as it is written, will make farming impossible for a small number of people unless they go to the NRA and ask for permission to continue managing their farms as before. I do not think that that is the right way to go about things, however small a number of people may be affected. However, there is nothing more to this matter than that point. I beg to move.

5.45 p.m.

The Earl of Balfour

My Lords, once again I wish to support my noble friend Lord Radnor. I do so partly as a result of an incident that occurred in my county. In that county there was a very severe flood in 1948. One of the main reasons that the flood was far more severe than any we have had either before or since was due to the fact that during the war years none of the streams was cleaned out and no trees that had fallen down across the streams had been pulled out. When three inches of rain fell in as many days we literally had a huge flood. That flood started to wash away bridges and everything else. Good management of streams is important. Sometimes one has to clean out the beds of streams and occasionally cut off tree branches that are hanging over streams. I only hope that Clause 108 is not too restrictive and that we shall not run the risk of flooding as a result.

The Earl of Arran

My Lords, as my noble friend Lord Radnor explained very fully to your Lordships in Committee, this can be a matter of concern, in particular to those involved in agriculture in certain of the chalkland areas of Southern England. My noble friend has again outlined his worries and concerns this afternoon. While we cannot accept the amendment, I hope that what I am able to say can offer noble Lords some reassurance.

First, as I said in Committee, it should be clear that the water meadows where the concerns are focused may be covered by water only a very few days each year, and do not fall within the term "inland waters"; therefore, nothing done within these meadows will be caught by Clause 108.

The ditches which serve the meadows are, however, inland waters, and it is the Government's view that they should be subject to the offence provision, for the disturbing of mud in such ditches may harm fisheries in rivers when the ditch water flows into the rivers. However, the consent of the NRA can be sought for these operations and, depending on the circumstances of the case, we are confident the authority will not want to interfere with acceptable practices carried out with due care. I am sure that the NRA will, in exercising its powers, take full account of good agricultural practice. But I do not believe we should limit the effect of the clause by importing this concept onto the face of the Bill. It is, we believe, a matter best left to the moderation and good sense of the authority.

As for my noble friend's proposal that the offence should not apply to anything done in the good management of fisheries, we see some difficulty. Partly this is because good fisheries management practice is nowhere defined. But more than that, as I said in Committee, the fact is that the main purpose of Clause 106 is the proper protection of fisheries. One would hope, therefore, that nothing done by anyone involved in the management of fisheries would cause damage to other fisheries further downstream. But that possibility remains, and we should not leave it dependent on varying views of good fisheries practice.

We believe, therefore, that it would not be appropriate to exclude things done in the management of fisheries from the scope of the offence. I emphasise again that the NRA's consent can be obtained in relevant circumstances. And given its responsibilities for fisheries, clearly if it regards action as good practice, it is most unlikely to prosecute. I believe that should give my noble friend due reassurance. It is in the light of these hopeful assurances that I ask my noble friend to withdraw his amendment.

The Earl of Radnor

My Lords, I admit to being considerably disappointed. Perhaps my own speech was a disappointment. I had, in effect, to repeat what I said in Committee. And my noble friend on the Front Bench has repeated exactly what he said. The circumstances have not altered at all.

It is not right to say that the meadows are flooded for only a few days a year. They are flooded for most of the winter in order to keep the frost out. It is a serious matter for fisheries. It does not hurt fisheries downstream to let weed float through. But it irritates fishermen. That is a very different thing. It does harm fisheries upstream to allow rivers to become choked with weed. There are plenty of rivers which one can allow to be choked with weed without spoiling drainage.

The rivers to which I refer are the chalk streams of England. I live among them in Wiltshire. I read in another context that the most northerly is the River Hull. I am therefore talking about large areas.

I shall certainly go away once more and consider whether there is any way round the problem. However, I still feel immensely strongly that the situation is wrong. I should perhaps have declared my interest long ago, both in fisheries and as someone who knows something about water meadows. In Committee I cited the case of a farmer whose whole livelihood depends on irrigated water meadows. Am I to believe that that farmer has to go cap in hand to the NRA to ask permission to continue his livelihood?

I shall go away and think about the matter again. I hope that my noble friend will also consider whether he can do something to alleviate what I agree is a parochial problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 [Procedure for certain Orders]:

The Earl of Arran moved Amendment No. 130: Page 214, line 34, leave out from ("authority") to ("and") in line 37 and insert ("and water undertaker whose area includes the whole or any part of that locality").

The noble Earl said: My Lords, Schedule 7 sets out procedures which are to apply to the making of orders for protection zones. Protection zones may be established for a wide range of purposes associated with the prevention and control of controlled waters. Often it will be in relation simply to the quality of water in the environment but in some cases it may be more directly related to water to be abstracted for supply. In any event, it will be clear that the water undertakers will have a major interest in proposals to establish zones. Indeed, in some cases they may want initially to make proposals to the NRA for such zones. Given such interest it is clear that they should be involved formally in the process of establishing zones.

In Committee it was suggested that the companies should be statutory consultees. While I have no doubt that relevant consultations—including consultations with the companies—will be undertaken by the NRA itself before it puts forward a proposal, we have concluded that the better way to ensure the appropriate involvement of the undertakers in the process is to have copies of the draft notice served on the water undertakers as well as on local authorities when the NRA submits a proposal to the Secretary of State. The undertakers will then be able to submit their views to the Secretary of State in time for these to be taken fully into account in his determination of the final terms and conditions of a consent. I beg to move.

On Question, amendment agreed to.

Clause 111 [Nitrate sensitive areas]:

Lord Stanley of Alderley moved Amendment No. 130A: Page 120, line 42, at end insert— ("(4A) Where an order contains provision for the imposition of requirements, prohibitions or reservations on the carrying on in relation to any agricultural land in the area to which the order applies of such activities as may be specified or described in the order, the order shall provide for compensation to be paid by the Minister or the Secretary of State to any person who has any interest in that land for any loss or damage sustained which is attributable to the making and implementation of the order.").

The noble Lord said: My Lords, this is the first in a series of amendments in my name and/or the name of my noble friend Lady Trumpington which relates to nitrate sensitive areas. All of the amendments were discussed very fully at Committee stage and resulted in my noble friend offering to meet National Farmers Union advisers. I should like to thank my noble friend and her officials for their help in arriving at an answer to all the points that were raised.

Rather than delay the House and repeat my concerns as expressed in Committee, with the permission of the House I shall merely move the amendments as they are called so that my noble friend on the Front Bench can give her considered reply. Amendment No. 130A deals with compensation arrangements for nitrate sensitive areas. I beg to move.

Baroness Trumpington

My Lords, first I thank my noble friend Lord Stanley of Alderley for his extremely kind words. I shall make sure that they reach the right quarters.

Amendment No. 130A would affect the compensation arrangements for a nitrate sensitive areas scheme involving compulsory agricultural measures. It would require the Government to pay compensation automatically for any loss or damage sustained as a result of compulsory measures.

I explained in Committee that the Government could not support this type of amendment because it went too far. It would not be right in every single case automatically to compensate for any loss arising from restrictions introduced to reduce nitrate leaching, for example, in the case of a requirement to comply with good agricultural practice. That continues to be the Government's position.

In raising this issue again, I think that my noble friend is seeking further reassurance on the Government's commitment to the payment of compensation in addition to the assurances which I gave in Committee. It may therefore help my noble friend in his deliberations if I say that, if at some future date we need to introduce compulsory agricultural measures involving substantial restrictions going beyond what could be regarded as good agricultural practice, we shall, prior to their introduction, publish a general statement outlining the main principles of compensation for such restrictions. Furthermore, farming organisations would be consulted during the preparation of any such statement.

I hope that in the light of this assurance and those I have already given in Committee my noble friend will accept that if the Government have to introduce compulsory measures they will act with sincerity and fairness and that, with regard to compensation, they will fully take into account the potentially serious impact that such measures could have on individual farm businesses.

Having heard what I have said, I hope that my noble friend will withdraw the amendment.

Lord Stanley of Alderley

My Lords, I am very grateful to my noble friend. Of course I should have liked compulsory compensation for everybody at all times, but that was not a serious option. We do not know what will happen in the future and I am grateful for my noble friend's assurance. I hope that she realises that we recognise the problem which would result if we were to press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley moved Amendment No. 130B: Page 121, line 46, leave out paragraph (e).

The noble Lord said: My Lords, the amendment deals with charges. I spoke to it in Committee. I beg to move.

Baroness Trumpington

My Lords, Clause 111(8)(e) of the Water Bill, as amended in Committee, would enable charges to be imposed in relation to applications for, or the granting of, consents for carrying on activities otherwise not allowed. My noble friend's amendment would delete that provision and therefore not allow such charges to be imposed.

I explained to the Committee why the Government could not accept this amendment. Those reasons remain. My noble friend was anxious, however, for an assurance that any charges would be modest and reasonable in relation to individual farmers. He stated, for example, that it would be totally unfair to expect farmers to foot the Bill for expensive scientific investigation work to prove that there was a need for an NSA.

On reflection I can give the assurance that my noble friend is requesting. If it was decided to impose charges for consents, these would be reasonable and designed to contribute to the cost of administering the concession. The moneys would certainly not be used for other unrelated purposes, including the one cited by my noble friend during the Committee debate.

I hope that in the light of this assurance my noble friend will feel able to withdraw this proposed amendment.

Lord Stanley of Alderley

My Lords, roughly the same comments apply to this amendment as applied to the last one. I should have liked more, but I fully understand my noble friend's problem. We have discussed it at length over tea. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Schedule 11 [Orders designating Nitrate Sensitive Areas]:

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, I should tell noble Lords that, if Amendment No. 130BA were to be agreed to, I should not be able to call Amendment No. 130C because it would have been pre-empted.

Lord Stanley of Alderley moved Amendment No. 130BA: Page 231, line 47, leave out from first ("on") to ("and") in line 48 and insert— ("(i) the Authority; (ii) every local authority and water undertaker whose area includes the whole or any part of that locality; and (iii) in the case of an order containing any such provision as is authorised by section 111(4)(b) of this Act, such owners and occupiers of agricultural land in that locality as appear to the relevant Minister to be likely to be affected by the obligations in respect of which payments are to be made under that provision;").

The noble Lord said: My Lords, this amendment deals with notification to farmers in nitrate sensitive areas. I spoke about the matter at the Committee stage. I beg to move.

Baroness Blatch

My Lords, I think that it would be appropriate if I spoke to Amendment No. 130C just as a safeguard. I tabled an amendment to Schedule 7 in Committee. The Minister agreed to bring back an amendment and has done so. I am grateful for Amendment No. 130, which has now been accepted, but I can see no reason why this same amendment should not apply to Schedule 11. It has already been said that, if the amendment tabled by my noble friend Lord Stanley of Alderley is accepted, it will pre-empt my amendment. I shall therefore wait in anticipation of his amendment being accepted.

Baroness Trumpington

My Lords, this is a helpful amendment which goes a long way to meeting the concerns that I expressed in Committee about the noble Lord's original amendment. It now distinguishes between schemes which simply compel a farmer to follow good agricultural practice, and those in which compensation will be paid in recognition of the fact that the measures are substantial and go beyond good agricultural practice and which could therefore seriously affect the livelihoods and activities of the farmers involved. The amendment ensures that all farmers in the latter category will be made individually aware of the proposals and the scope for commenting on them. The Government can accept that approach, which follows the 1981 Wildlife and Countryside Act where it deals with areas of special scientific interest.

I know that my noble friend had originally hoped that we would notify owners and occupiers of all land affected by proposals for compulsory measures, whether or not compensation was paid. I am most grateful that he has now recognised our practical difficulty in so doing and altered his amendment accordingly. Perhaps it would ease his mind in that respect if I assured him that, as an administrative rule, we will copy to all principal farming organisations the published notices concerning all designating orders containing compulsory measures. The inclusion of notice to water undertakers is consistent with an amendment to Schedule 7 on water protection zones and recognises their special interest in the scheme. I am pleased to commend Amendment No. 130BA to noble Lords.

I am also grateful to my noble friend Lady Blatch for her remarks. I trust that she understands that Amendment No. 130C is rendered unnecessary because of what I have just said. I therefore commend to the House Amendment No. 130BA, thereby enabling Amendment No. 130C to be withdrawn.

Lord Stanley of Alderley

My Lords, I should like to thank my noble friend the Minister for that reply. I am grateful for her acceptance.

On Question, amendment agreed to.

Baroness Blatch had given notice of her intention to move Amendment No. 130C: Page 231, line 47, after ("authority") insert ("and water undertaker").

The noble Baroness said: My Lords, I am most grateful to my noble friend. I shall not move the amendment.

[Amendment No. 130C not moved.]

Baroness Trumpington moved Amendment No. 131: Page 232, line 13, leave out ("twenty-eight") and insert ("forty-two").

The noble Baroness said: My Lords, in moving this amendment, I shall also speak to Amendment No. 132.

Amendments Nos. 131 and 132 would extend from 28 to 42 days the period during which a proposed order and any relevant map or plan might be inspected following the date of first publication of the relevant notice. They would also extend from 28 to 42 days the period during which an interested person might object to the making of an order.

These amendments are identical to ones suggested by my noble friend Lord Stanley of Alderley at Committee stage which I agreed at the time to consider. I have now done so. I accept my noble friend's argument that the potential seriousness and complexity of the measures that might be introduced under Clause 111 justifies a slightly longer period for consideration and a period, moreover, for which there is precedent in the 1980 Highways Act. I am grateful to my noble friend for raising the point and commend these amendments to the House.

Lord McIntosh of Haringay

My Lords, I am sorry to strike a sour note in this atmosphere of mutual congratulation; but I am bound to say that the farmers are achieving a degree of consideration that is not commonly given to other groups in the community. The nitrate sensitive area proposals were a very minimal proposal even when they started out. They do not go anywhere near dealing with the much more fundamental problem of the pollution caused by farmers—no doubt egged on by the Ministry of Agriculture—over many years. It should be dealt with in a far more radical way. Farmers should pay for it or contribute much more than they do. I am sorry to see the Government yielding to pressure from the farmers in that respect. I hope that the lessons learnt from that tenderness of heart will be applied to other more deserving groups in the community.

Baroness Trumpington

My Lords, this is a most extraordinary amendment on which the noble Lord chooses to give a party political broadcast. To move from 28 to 42 days' notice is a sensible thing to to. How often has the noble Lord——

Lord McIntosh of Haringey

My Lords——

Baroness Trumpington

My Lords, I shall not give way for a moment.

Lord McIntosh of Haringey

My Lords, it is a question of order. The Minister has the right of reply, but her noble friend Lord Stanley has only one opportunity. He sought to reply and did not have an opportunity to do so.

Lord Stanley of Alderley

My Lords, if it is in order, I shall let my noble friend on the Front Bench reply and then reply myself.

Baroness Trumpington

My Lords, I do not have to come back. I just wish to finish by saying that I wonder whether the noble Lord has ever come back from holiday and found a final demand for a gas bill. It is very irritating. That was one of the reasons why I accepted the extension. It has nothing to with the NFU.

Lord Stanley of Alderley

My Lords, I think I am right in saying that I have a right of reply.

First, I should like to thank my noble friend for her reply. I should say to the noble Lord, Lord McIntosh of Haringey, that, although my noble friend has given us some concessions, they are extremely minor. When I return to my flock, as they say, I shall be told that I had not done at all well.

Perhaps I should also say to the noble Lord that I think he expects me permanently to annoy my noble friends on the Front Bench. Just for a change, happiness and light shine. For how long, I do not know; but, while they do, I do not see why we should not enjoy it and bask in the atmosphere of peacefulness. I do not know how long it will last. I hope that it lasts for a full two weeks.

On Question, amendment agreed to.

Baroness Trumpington moved Amendment No. 132: Page 232, line 26, leave out ("twenty-eight") and insert ("forty-two").

On Question, amendment agreed to.

Lord Stanley of Alderley moved Amendment No. 132A: Page 233, line 5, leave out ("if he or they consider it appropriate to do so") and insert ("and shall where any objections in writing have been received to the making of an order containing mandatory provisions from an owner, lessee or occupier (except tenants for a month of any period less than a month) of any land comprised in the order and which have not been withdrawn").

The noble Lord said: I spoke to this amendment at Committee stage. It deals with inquiries. I beg to move.

Baroness Trumpington

My Lords, in the case of one or more objections to a proposed order designating a nitrate sensitive area, Schedule 11, paragraph 6, would enable the Secretary of State and the Minister to hold a public inquiry before deciding whether or not to make the proposed order, although it would not compel them to do so. My noble friend's amendment would, however, automatically require such a public inquiry.

The Government could not accept the amendment, for the reasons explained to the Committee. However, I gave an assurance that every case will be cnsidered on its merits although our normal policy will be to hold public inquiries whenever a proposal raises new issues of policy not previously examined in public.

I pause for a moment and wonder whether the noble Lord, Lord McIntosh, is interested in what I am saying. I understand that he is. To continue, in reply my noble friend asked whether there might also be a role for some other form of inquiry and I think that he had in mind a possible inquiry at a later stage. I have now looked further into the question of possible second stage inquiries.

Clause 111(8) would empower the Minister and the Secretary of State, acting jointly, to make regulations covering arbitration procedures in the event of a contested refusal of an application for consent, for example, by a farmer to carry on an activity not otherwise allowed. I can now say that it would be our intention, prior to the introduction of compulsory measures, to make mandatory provision for the appropriate arbitration procedure in the event of a contested refusal of consent. In the light of those assurances, I hope that my noble friend will feel able to withdraw his amendment.

Lord Stanley of Alderley

My Lords, I am sure that the noble Lord, Lord McIntosh, will be delighted to hear that I have not got what I wanted. I have had an assurance, for which I am grateful, but I do not have it on the face of the Bill as I should have liked. While I am not unreasonably happy—if that is the word to use—I am sure that the noble Lord, Lord McIntosh, must now be happier. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 [Consents to certain Discharges]:

[Amendments Nos. 132AA and 132AB not moved.]

The Deputy Speaker

My Lords, Amendment No. 132B is wrongly marshalled on the List and we shall come to it later.

Clause 115 [Codes of good agricultural practice]:

Lord Stanley of Alderley

moved Amendment No. 132C: Page 124, line 22, at end insert— ("(4) For the purposes of section 29 of the Town and Country Planning Act 1971 (determination of planning applications) the desirability in appropriate cases of relocating agricultural buildings and associated works in accordance with good agricultural practice, or in order to comply with any requirements made under the Control of Pollution Act 1974, shall be a material consideration."). The noble Lord said: My Lords, I must say that this amendment does not deal with nitrate sensitive areas. For a moment or two we move into a slightly different field. This amendment was inspired by the reply given to me at Committee stage by my noble friend to the effect that it was the Government's intention and desire that encouragement should be given to farmers by way of advice to avoid pollution of all kinds and in particular water pollution.

Historically the best farms—which are often dairy farms—have been sited near or even around a stream or well and often in the middle of a village. Such sites are often far from satisfactory in that it is extremely difficult not to pollute water if one is so close to it. Indeed, because of the change in the lifestyle of the inhabitants of our villages—most of them no longer work on the land—farms are disliked for their noise, smell, traffic generation and pollution. The farmer might prefer to move his farm to a safer site—and by that I mean safer from a pollution point of view. I should declare an interest in that the farm which I previously tenanted from New College is considering that course of action. But preliminary soundings from the local authority have not been helpful although my son who farms there now is continually harried for making a noise and for traffic generation.

The purpose of this amendment is therefore to ask the Government whether they will make clear in the planning laws and directives that those problems of pollution are recognised and are a factor—I am not asking for planning permission itself—that should be taken into account when granting planning permission for new buildings or works. I beg to move.

Lord Hesketh

My Lords, under this amendment if a local planning authority had before it a planning application to erect new farm buildings in the place of existing farm buildings at a different location, then that planning authority would be required, when deciding whether to grant permission, to take account of the fact—if it were a fact—that the new buildings might reduce pollution and promote good agricultural practice.

This is an amendment to the planning control system. Specifically it is an amendment to Section 29 of the Town and Country Planning Act 1971. It therefore does not belong in this Bill. Nevertheless, I fully appreciate the reason behind the amendment. I accept that in some cases the best way of dealing with a pollution or environmental problem will be to discontinue the activities at the site where they cause the problem and to relocate them in modern, purpose-built premises designed to avoid any recurrence of the problem. In circumstances where planning permission for the new premises is necessary, the concern of the local planning authority will naturally focus on the details of the new development proposal. However, if the new proposal is also likely to bring about environmental or other benefits elsewhere, this may sometimes be an additional factor in favour of the new proposal. I am grateful to the noble Lord, Lord Stanley of Alderley, for raising this point and we shall consider whether it would be appropriate to include some reference to it in the planning guidance issued by my department.

In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Stanley of Alderley

My Lords, I like what my noble friend has said. I hope that I shall not have my throat cut by the Opposition. It is exactly what I wanted the Minister to say. I do not want this requirement in the Bill and I fully understand why it should not be there. However, I am delighted that the Government recognise the problem that I have brought up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Clause 116 [Registers for the purpose of Chapter I]:

Lord Ezra moved Amendment No. 132CA: Page 125, line 7, at end insert— ("(3) It shall be the duty of the Secretary of State, when making regulations under this section, to prescribe that the registers maintained by the Authority under this section shall—

  1. (a) include computerised records of all the items mentioned in paragraphs (a), (b), (c), (d) and (e) in subsection (1) above; and
  2. (b) provide facilities for any such records to be ordered and mapped geographically according to National Grid References, hydrometric sub-catchments.").

The noble Lord said: My Lords, this amendment refers to the registers described in Clause 116. The clause lays down what should be contained in the registers and that they should be available to the public for inspection. The purpose of this very simple amendment is to lay down also the manner in which this information should be contained in the registers; namely, with a common basis and common references, so as to facilitate perusal by the public. I beg to move.

Lord Hesketh

My Lords, this amendment would require first that all the details included by the NRA on its public register of discharge consents should be held in computerised form; and secondly, that they should be order mapped to national grid reference hydrometric sub-catchments.

As to the first point, we do not think it right to go quite as far as the noble Lord proposes. As a matter of fact most sample data is held on computerised record and, given its volume, it is difficult to see how any other system could be satisfactory. But in some cases the actual consents and other legal documents have been held in hard copy and we do not think that we should rule out that approach. Either way, the NRA will have to undertake a review of the arrangements inherited from the 10 water authorities, and we do not think that we should pre-empt its conclusions on the most efficient and effective approach to a practical question such as this one.

As to the second half of the amendment, we already go a good way to meet this, in that our draft register regulations, on which we are consulting, require inclusion of six-figure national grid references. As for reference to hydrometric sub-catchments, that is something that we shall undertake to consider in finalising the draft regulations and our conclusions can be pursued further when the regulations come before the House. In any case, we consider that it would be too rigid and inflexible for the primary legislation to impose requirements in this matter, and that subordinate legislation is the place for it to be.

In the light of those commitments, I hope that the noble Lord will see fit to withdraw his amendment.

Lord Ezra

My Lords, I thank the Minister for that considered reply, which I found most helpful. The purpose of the amendment was to facilitate perusal by the public. I hope that whatever system is finally devised it will have in mind that objective. In the light of the Minister's remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 132CB not moved.]

Lord Norrie moved Amendment No. 132D: After Clause 126, insert the following new clause: ("Licences to abstract water .—(1) Where—

  1. (a) a licence to abstract water is held under the Water Resources Act 1963; and
  2. (b) a licence of right to abstract water is held under that Act, the Authority shall from time to time review all such licences.
(2) If the Nature Conservancy Council, the Countryside Commission, the Regional Rivers Advisory Committee or the Regional Fisheries Advisory Committee is of the opinion that it is appropriate to do so, they may request the Authority to review any particular licence and for the Authority to vary the conditions or revoke or otherwise suspend such licences in order to ensure the flow, level or volume of any inland water or any water contained in underground strata for the purposes of protecting fisheries, flora, fauna or natural beauty.").

The noble Lord said: The effect of this amendment is to place a statutory requirement on the National Rivers Authority that it shall from time to time review all water abstraction licences. It also provides for a trigger mechanism which will allow a number of statutory advisory bodies to request the review of any particular licence.

This amendment is essentially the same as the one I moved at Committee stage which received support from all sides of the House. However, I accept the point made by my noble friend Lord Arran in reply to my earlier amendment that we do not wish to see the National Rivers Authority burdened with unnecessary bureaucratic procedures. My intention with my previous amendment was for the authority to review licences at regular intervals—which I still hope that it will do—but this new amendment provides for greater flexibility.

To give the NRA sufficient scope to manage its own affairs, I have adopted the form of wording that is used in Schedule 12 when the NRA considers the review of consents to discharge into controlled waters. This schedule states: It shall be the duty of the authority to review from time to time the consents".

This will leave the management of the review to the NRA and allay the Government's fear of adopting a rigid timescale.

During the debate at Committee stage we heard evidence from all sides of the problems caused for fisheries and wildlife as a direct result of over-abstraction of water. We heard how rivers such as the Wye and the Kennet have been affected and how chalk streams around the Thames Basin had dried up or been reduced to a trickle. Nature reserves owned by conservation bodies have been affected. I mentioned Fowlmere, Dungeness and Strumpshaw Fen owned by the Royal Society for the Protection of Birds. The noble Baroness, Lady David, told us of Redgrave and Lopham Fen owned by the Suffolk Wildlife Trust. The Government's adviser on nature conservation, the Nature Conservancy Council, has highlighted problems on the River Hull in Humberside, the River Hiz in Bedfordshire, Ashwell Springs in Hertfordshire and East Ruston Common in Norfolk. These all illustrate that, although the Water Resources Act 1963 makes it possible to amend abstraction licences, the will to do so, for whatever reason, has been lacking. The first part of my amendment will rectify this by making the review of abstraction licences obligatory.

The second part of my amendment, as before, is to permit a number of other statutory bodies to request that the NRA carries out a review of any particular licence. This amendment will enable advisory bodies with a direct interest in fisheries, conservation and amenity to have direct access to the authority rather than through the Minister, which is the current procedure in Section 43(2) of the Water Resources Act 1963. Passing the responsibility to the NRA will help to speed up the administrative process.

With leave of the House, I shall outline how this trigger mechanism would work. As a typical example I take the River Pang in Berkshire which flows into the Thames at Pangbourne and which serves as a supply of drinking water for Didcot and for cooling water for Didcot Power Station. The total length of this river is nine miles. Prior to 1965 it was a flourishing river with its source rising in the chalk hills of the Berkshire Downs and with its upper reaches flowing through the four parishes of Compton, Hampstead Norreys, Yattendon and Frilsham. It contained a rich diversity of aquatic vegetation and provided nesting tunnels for the kingfisher, which is totally dependent on the river and its surroundings. The Government have international obligations for its protection and habitat.

Continued abstraction from a series of boreholes at Compton has reduced a four-mile stretch of the Pang—nearly half its total length—to nothing more than a trickle running along the bottom of a ditch. The reduction in flow has led to the loss of a trout fishery in the upper reaches and has seriously affected the viability of local watercress producers in Stanford Dingley. Where there was once herb rich wet meadows at Frilsham, supporting breeding waders including snipe, there is now just a wheat field.

The licence allows up to 20 million gallons of water to be abstracted every day from the River Pang by the CEGB and Thames Water Authority causing the "perennial head"—the uppermost point of a river that has a guaranteed minimum flow—to have shifted four miles downstream. The local parish councils and residents are deeply concerned over the disappearance of their local river and have tried unsuccessfully to obtain a review of the abstraction licences.

My amendment, if accepted, would enable the parishes to approach the NRA's advisory committees, or the Nature Conservancy Council or the Countryside Commission. If one of these bodies having looked at the problem, considers that abstraction is significantly affecting the river's ability to support fish or wildlife or is damaging the livelihood of local population, it shall request the NRA to review the licence. In this way the NRA can establish its priorities of work and concentrate on reviewing those abstraction licences where the need to do so is greatest. The amendment will also help to clarify the situation for the water industry.

I now wish to speak to Amendment No. 132K. The purpose of this amendment is to permit the NRA to vary or revoke any water abstraction licence, including licences of right. I have already outlined the problems that have been caused for fisheries and wildlife by excessive abstraction of water. The Water Resources Act 1963 established a system of licensing for water abstractions. Those bodies that were abstracting water immediately prior to 1963 could apply for a licence which would be called a licence of right in order to distinguish it from licences granted in respect of new abstractions after 1963. Indeed, Section 33(7) of the 1963 Act quite clearly states that, any licence granted in pursuance of an application under this section, or in pursuance of an appeal consequential upon such an application, is referred to in this Act as a 'licence of right'.

That means that whenever a section in the 1963 Act relates to licences of right it should specifically use the phrase "licence of right". Section 43, which provides for a review and revocation of licences, states: where it appears to a river authority that a licence under this Act granted by the authority should be revoked or varied, the authority may formulate proposals for revoking or varying the licence".

It makes no reference to the phrase "licence of right". By implication, it applies only to licences granted in the normal way. The NRA therefore appears powerless to review abstractions that have been in place prior to 1963.

The amendment proposed would rectify the position and make it quite clear that the NRA would be able to take action and there would be no doubt that abstraction granted under licences of right were indeed included. This would help to prevent and reverse damage to fisheries and nature reserves in many parts of England and Wales and would be welcomed by anglers and conservationists alike. I beg to move.

Lord Renton

My Lords, I should like to support my noble friend Lord Norrie on both these amendments but especially on Amendment No. 132K to which I have added my name because it has been pointed out to me on behalf of the Royal Society for the Protection of Birds that it is an amendment which is essential to the 1963 Act in order to bring it up to date in the light of the Bill.

There is no need for me to repeat the arguments that my noble friend Lord Norrie has so clearly presented. However, I would add just this. So often we have had pointed out from the Government Front Bench and from all sides of the House the advantages of flexibility, instead of having things too closely tied up by the Bill. Amendment No. 132D in the name of my noble friend has the advantage that there would be some flexibility in circumstances in which we should surely try to achieve it. After all, a licence to abstract water should not go on for ever. In the light of changing circumstances it should be capable of being reviewed from time to time. In my opinion that is the main reason to commend the first amendment of my noble friend.

6.30 p.m.

Lord Walston

My Lords, I should like briefly to support the amendment. It is essentially very sensible and can have a profound effect upon the environment, particularly those areas of special scientific interest and enjoyment not only to the rural but to the urban population. There is no doubt that demand for water is increasing. Much of that demand falls upon the aquifers in the eastern counties. Inevitably those are increasingly depleted with the effect that has been described by the noble Lord, Lord Norrie. It surely is right, as the noble Lord, Lord Renton, has said, that there should be flexibility in this matter. When a licence is granted it should not be irrevocable and permanent, but should be reviewed at any time in the light of changing circumstances.

The proposals put forward in the amendment are wise and sensible, putting the right to request a review in the hands of highly respected organisations and leaving the final decision with the appropriate authority. It seems to me to be a wise and sensible amendment and I hope that the Government will accept it.

Baroness David

My Lords, my name has been added to this amendment and I should also like to add my support to the case made so well by noble Lords who have already spoken. I do not need to say very much more. Too much abstraction of water causes problems for the wildlife, the flora and the fauna. It also can damage archaeological remains and sites by drying them out and we know that there is anxiety in that regard as well.

The flexibility and the possibility for change is very important. If new planning permission is given and more houses built there can be a great demand on the water causing lowering of levels and the flow may not be kept up in the rivers if too much is taken out. There is flexibility in the amendments. I believe they are better than those to which we had our names at Committee stage, so I hope the Government will feel that they can support them. My noble friend Lord McIntosh on the Front Bench also supports them.

The Earl of Caithness

My Lords, I am grateful to my noble friend that in the modifications he has made to Amendment No. 132D as compared with the amendment he moved at Committee stage, he has recognised the two difficulties which his earlier amendment would have created. The requirement for five-yearly licence reviews has been replaced with a duty to review them "from time to time", and the role of the Nature Conservancy Council and the other three bodies mentioned has I think been made rather less burdensome, in that they are now to be allowed only to request the NRA to review a licence.

My noble friend Lord Norrie made a totally convincing case. I should be the first to be keen to accept his amendment, but for one thing, that is, that he bases his argument, if I may put it that way, on a complete misunderstanding of the Bill. I can give my noble friend the categoric assurance that the powers he seeks are already in the Bill.

Lord Renton

Where, my Lords?

The Earl of Caithness

My noble friend Lord Renton, from a sedentary position, asks where. He might refer to Schedule 26 paragraph (29)(i) which covers the point that he was worried about. Briefly, the Bill provides that all abstraction licences granted by the NRA's predecessor bodies under the Water Resources Act 1963 are to be deemed granted by the NRA. So that takes care of that point. As the 1963 Act provides that even licences of right are licences granted—that was my noble friend's other concern—Section 43 of that Act has the clear effect of allowing them to be amended or revoked either, as now, by the water authorities or, in the future, by the NRA. Those who have advised my noble friend that licences of right cannot be amended or revoked (except at the request of the holder) are simply in error. I think this explanation deals also with Amendment No. 132K, since it too implies that licences of right will not already be able to be revoked or amended by the NRA.

That is not to say that there are no practical problems associated with the exercise of this power, but there is certainly no gap in the: legal powers which the Bill provides. Nor, of course, is it necessary to provide specifically that the NCC and other such bodies may request the NRA to exercise this power. They and indeed anyone are free at any time to make out a case and ask the NRA to act appropriately. No doubt they will, indeed, do so. But there is no need at all to spell that out on the face of a Bill.

Finally, I appreciate that a duty to review licences from time to time is not a particularly onerous one as it is clearly open to interpretation as to how frequent a review it implies, but I am nonetheless unwilling to accept such a duty being imposed on the NRA. This is simply because there is no obvious need for all licences to be reviewed even from time to time.

Low flow problems are fairly localised. My noble friend made that clear. For the bulk of licences there will most likely be no need, for the foreseeable future, to review them at all.

In conclusion, I am totally with my noble friend, but I fear that his arguments are based on a misunderstanding of the Bill because the Bill already contains the necessary powers that he feels are necessary.

Lord McIntosh of Haringey

My Lords, before the noble Earl sits down and before the noble Lord, Lord Norrie, responds, he has claimed in his reply to the amendments that there is already a power to review licences. However, the amendment moved by the noble Lord, Lord Norrie, refers only to the power to review licences as a means to an end, the end being to stop the damage to rivers by over-abstraction. What is required from the noble Earl—if he is effectively to deal with the concerns which have been expressed by noble Lords on all sides of the House—is that he should indicate how there shall be a duty on the National Rivers Authority, or whatever authority is concerned, to secure that over-abstraction is put an end to and that our rivers are protected and returned to the state in which they ought to be.

The Earl of Caithness

My Lords, I believe I can meet the noble Lord's concern. In the Bill there is the duty on the NRA to review the licences in order to maintain a flow in the rivers. The NRA can review any of the licences to enable it to carry out the duties laid upon it.

Lord Norrie

My Lords, I am grateful for the Minister's lengthy reply. I have listened carefully to it. There is no doubt that both in Committee and at this stage great concern has been and is still being expressed on all sides of the Chamber. I have been able to speak with personal knowledge of the plight of the River Pang, which is representative of many other affected rivers.

Over abstraction has united all countryside users including conservationists, farmers, anglers and recreation organisations. When these bodies are in agreement on an issue, we should take notice. However, I shall read Hansard with great care to see what the Minister has said. In relation to my second Amendment No. 132K on licences of right, it still appears that there is more than one way of interpreting the Water Resources Act 1963. To clarify the matter, is the Minister prepared to give an assurance that he will inform the NRA that it has the legal powers to vary or revoke licences of right?

The Earl of Caithness

My Lords, with the leave of the House, I do not think I need to give my noble friend that assurance because it is already in the Bill. However, let me look at that point because I should like to be clear on it too.

Lord Norrie

My Lords, I am grateful to the Minister and at this time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 13 [Amendments of the Water Resources Act 1963]:

Lord Stanley of Alderley moved Amendment No. 132E: Page 242, line 12, leave out ("twenty") and insert ("thirty").

The noble Lord said: My Lords, with permission I shall also speak to Amendments Nos. 132F to 132J. I moved a similar amendment at Committee stage in cols. 296–297. I fully appreciate the problems that my noble friend Lord Caithness stated in Committee at that time. I suppose that I over-iced the cake by asking for double the amount of water at that stage, but at least I am now repenting of my sin and asking for only 30 cubic metres.

I hope that my noble friend will not accuse me of entering into a Dutch auction. I hope he will agree that my noble friend Lord Monk Bretton had a cast-iron case in saying that 20 cubic metres only just suffices for a herd of 120 cows. Bearing in mind that the farm has other demands for water, I believe that 30 cubic metres is the correct amount.

As I said in Committee in reply to my noble friend, we are talking about a non-mains supply and it may not be possible to do as he said and obtain the balance of water from the mains. I beg to move.

Lord McIntosh of Haringey

My Lords, I should like to be clear about the meaning of the amendment. I understand that the noble Lord wishes to abstract more water; in other words, he is going against the entire tenor of the previous debate.

The Earl of Caithness

My Lords, the noble Lord, Lord McIntosh, is absolutely right. For that reason I am disappointed that neither my noble friend Lord Renton nor my noble friend Lord Norrie who sadly is no longer present in the Chamber, was prepared to enter into the debate. This is another example of the necessity to strike a balance. It is not merely an arbitrary balance because, as my noble friend will be aware, the issue was considered carefully in a consultation exercise. There have been no significant new developments which may lead us to change our minds.

Of course my noble friend Lord Monk Bretton put forward some useful points in Committee, as have noble Lords who spoke on the last amendment. It remains a relevant point that to increase the threshold to 30 cubic metres per day would correspondingly increase the risk from the cumulative effect of a number of small abstractions and thereby of inadvertent derogation from protected rights. It would adversely affect environmental and other third party interests. I suggest that the threshold of 20 cubic metres per day represents a reasonable balance.

Far be it from me to say that my noble friend was horse trading or entering into a Dutch auction. I believe that he is being most serious about the matter and I hope that he realises that I have also been serious.

Lord McIntosh of Haringey

My Lords, before the noble Earl sits down, will he help the House by explaining what is meant by 20 and 30 cubic metres in terms with which noble Lords are more familiar; that is, in gallons?

The Earl of Balfour

My Lords, I can give the House the answer. Twenty cubic metres of water is 4,400 gallons; 30 cubic metres is 6,600 gallons.

Lord Graham of Edmonton

My Lords, the noble Earl's lips never moved—that is brilliant!

Lord Monk Bretton

My Lords, before my noble friend sits down I should like to ask a question. He is taking away something which I believe to be an old prescriptive right of the farmer. It is that agricultural livestock should be permitted to drink any water indigenous to the farm. That is being whittled down to the proposed maximum. I am not happy about the way in which the quantities have been set. I should like to know from what source he received the agricultural advice that the amount was adequate and for how large a farm?

The Earl of Caithness

My Lords, with the leave of the House, I hope that we can stick to the rules of the House at Report stage. On this occasion I shall make an exception for my noble friend. As he knows, there was a consultation exercise during which all these matters were fully discussed. I understand my noble friend's concern and I know that he will take on board the concerns of those who see the matter from a different point of view.

Lord Stanley of Alderley

My Lords, I am sure that the noble Lord, Lord McIntosh, is glad to see that the sun has gone in and I am back to throwing bricks from behind my noble friend on to his head.

A serious point has been missed. A small amount of water is involved and I am proposing that we should not increase bureaucracy by asking for such a low level. If a farmer has 200 cows, for example, and needs 40 cubic metres of water he will almost certainly be granted that right. It will have to be granted to him. I am proposing that we cut down the bureaucracy so that fewer farmers will overload my noble friend Lord Crickhowell with paperwork. We are talking about small amounts of water but obviously my noble friend is no longer being hit by my bricks. He is being encouraged by the noble Lord, Lord McIntosh, to resist anything I say. Therefore, I must withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132F to 132J not moved.]

6.45 p.m.

The Earl of Cranbrook moved Amendment No. 132B: Page 244, line 8, at end insert—

14A. In the proviso to subsection (2) of section 42 of the 1963 Act (revocation or variation on application of holder of licence) after "periods" insert "and all other minor variations (not in the aggregate exceeding 20 cubic metres in any period of 24 hours) which in the opinion of the Authority are not likely to affect other licensed abstractors".").

The noble Earl said: My Lords, the amendment has not yet been moved and I am bobbing up and down trying to do so. It was misplaced because it belongs to Schedule 13, which provides amendments to the 1963 Water Resources Act. The amendment introduces a further amendment to that Act. It was tabled in Committee by my noble friend. The sympathetic response of the Minister suggested that we were being invited to bring it back to the House in a somewhat different form stipulating the kind of limit on the category of variations which would not need to be advertised. This revised amendment does that.

The limit that has been suggested is adopted from the equivalent quantity already specified in Schedule 13, paragraph 8(2) of the Bill in respect of applications for new licences. Therefore, it conforms with quantities which do not need advertising. Under Section 42(2) of the 1963 Act any variation to an existing licence, however trivial, other than for a reduction in quantity, is subject to the full advertising procedure. The experience of Anglian Water Authority shows that that leads to unnecessary bureaucracy. It is believed that advertising should be required only for significant changes at the discretion of the National Rivers Authority.

At present a farmer must advertise his wish to irrigate different fields. That causes an extra workload for the NRA units of the water authority and unnecessary expense for the licence holder. However, it does not convey any corresponding benefit. The dispensation would equate with the position under the Control of Pollution Act 1974 where the authority can dispense with advertising requirements when: the discharges … will have no appreciable effect on the water".

That appears in Section 36(4).

The amendment is also intended to dispense with advertising when there will be no appreciable environmental effect. I beg to move.

Lord Hesketh

My Lords, Section 42 of the Water Resources Act 1963 provides for the revocation or variation of licences to abstract water at the request of the licence holder. The purpose of this amendment would seem to be to disapply publicity requirements for applications for increases of up to 20 cubic metres applied for by licence holders and which the NRA considers are not likely to affect other licensed abstractors.

I should like to draw my noble friend's attention to Section 42(2) of the 1963 Act which applies, interalia, the provisions of Section 28 of that Act to applications for increases in licensed amounts. Section 28 is amended by paragraph 8(2) of Schedule 13 to the Bill which gives the NRA the discretion to dispense with the requirements of that section relating to publication arrangements, that is, for applications for abstractions of up to 20 cubic metres a day.

I hope that my noble friend will find that what is already provided explicitly in the Bill is similar to his amendment, which is therefore unnecessary.

The Earl of Cranbrook

My Lords, if I understand that aright, it means that the paragraph from which I copied the terms of the proposed amendment was effective in the very case which I had under consideration. I should like to read what the noble Lord said but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 132K not moved.]

Clause 135 [Flood defence functions of the Authority]:

Lord Addington moved Amendment No. 132L: Page 140, line 31, after ("Authority's") insert ("fulfilment of the general and environmental duties set out in section 8 of this Act, the fulfilment of the environmental duties with respect to sites of special interest set out in section 9 of this Act and the").

The noble Lord said: My Lords, the purpose of this amendment is to give the NRA the power to direct a regional flood defence committee where it feels that there is a conflict between the environmental and general duties of that committee.

At present the Bill requires the NRA to discharge its land drainage and flood defence functions through the regional committees in much the same way as the water authorities do at present. As drafted in Clause 135 of this Bill and in Section 1(2) of the Land Drainage Act 1976, the NRA has the power to direct regional flood defence committees where work is planned for flood defence purposes which are likely to have a material effect on the NRA's water management activities. That power is totally inadequate for the protection of landscape, wildlife, fisheries and other parts of the environment especially when it is considered in relation to the remaining wetlands and marshes of England and Wales. This amendment will give the NRA the power to direct regional flood defence committees upon environmental matters.

Over the years the regional land drainage committees have promoted many environmentally damaging schemes. They were mainly to do with drainage for agricultural purposes and thus increased food production. As we no longer require increased food production, should the RDCs suggest a scheme of land drainage in areas of high nature conservation or landscape interest, the NRA must be able to give a clear direction about the undesirability of such a scheme.

I moved a similar amendment in Committee concerning the existing powers of water authorities. The noble Baroness, Lady Trumpington, who replied said that the agreement works satisfactorily and there is no need to change it. I must disagree with her. The RSPB has provided evidence which shows that existing arrangements are far from satisfactory. Between 1971 and 1980 around 70,000 hectares of wetland and marsh were drained. A survey conducted in 1982 indicated that the numbers of snipe breeding in lowland areas of England and Wales had decreased from 10,000 to 2,000 pairs. Snipe are a particularly good example of a species of bird affected by this form of activity as they feed on worms which live in soft mud in wetland and marsh areas. Numerous other wading birds would be similarly affected.

This amendment would allow the NRA to direct regional committees when it feels that there is a conflict among the duties of the regional defence committees, and in particular to provide a certain fallback in defence where the landscape and natural environment is concerned. I beg to move.

Lord Renton

My Lords, this amendment does not appear to be necessary. I say that because of the very wide terms of Clause 135(5) as they already stand. I need not read them out because noble Lords can see them.

Also, I should have thought that it was rather undesirable to have such a long and unmanageable sentence, which we should have if this amendment were added to what is already a fairly long sentence. For those two reasons, I hope that my noble friend will not accept this amendment.

Lord Howie of Troon

My Lords, I should like to support the amendment from a slightly different point of view from that of the mover. Noble Lords will recall that part of the duties under Clause 8 of the Bill are to protect and conserve buildings. On all sides of the House we are agreed that that is the right and proper thing to do. However, there is one aspect of the duties of the National Rivers Authority and the flood protection bodies with which the Bill does not seem to me to deal adequately; that is, dealing not with the problems of over-abstraction of water from rivers but with the problem of declining abstraction of water from underground sources. As noble Lords will recall, the effect of that is to raise the water table in various parts of the country, especially in areas where de-industrialisation has led to a reduction in the water demand by declining industries.

The raising of the water table causes flooding in basements and so on and other underground parts of buildings and structures. I believe that the Bill, if not silent, is not very loud on that matter and it seems to me that that is something on which the river authority could effectively give instructions to the regional flood authorities.

Baroness Trumpington

My Lords, Section 1(2) of the Land Drainage Act 1976 is deleted by Schedule 27 of the Bill and replaced by Clause 135(5). The proposed amendment to Schedule 15 is therefore inappropriate. As the noble Lord, Lord Addington, said, the amendment to Clause 135 is very similar to Amendment No. 387 which your Lordships decided to reject in Committee. Alas, we must continue to disagree.

The NRA is generally required to discharge its flood defence functions through regional flood defence committees. As Clause 8 requires the NRA always to have an eye to conservation, it follows that the authority's management of water in general is covered by that duty. In the case of Clause 9 nothing in any direction of the authority can take away the duty to consult the NCC or, if relevant the national parks or Broads authority, before carrying out or authorising any environmentally insensitive works. My noble friend Lord Renton is quite right. The reason for the particular type of direction in Clause 135(5) is to resolve conflicts of priority between flood defence and other functions and not to lessen general conservation duties.

I should also emphasise that flood defence committees will themselves be subject to the NRA's environmental duties and obligations at Clause 8(1) to (3). This reflects the current position with water authorities which is clearly set out in our conservation guidelines for drainage authorities. The guidelines also clearly describe the committees' obligations concerning SSSIs. This advice will be updated when the code of practice is introduced in accordance with Clause 10. The Secretary of State for the Environment recently announced that he was asking the NRA to look into the question of rising water levels under London and other cities.

I hope that I have convinced the noble Lord that these amendments are unnecessary and inappropriate, and I ask him kindly to withdraw them.

Lord Addington

My Lords, I should like to thank the noble Lady for a very careful reply. As it was so full and complicated I shall have to take it away and study it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

Baroness Trumpington moved Amendment No. 132M: Page 140, line 48, at end insert— ("( ) Where the functions of any water authority immediately before the transfer date include, by virtue of any local statutory provision, any functions relating to flood defence—

  1. (a) those functions shall become functions of the Authority on that date; and
  2. (b) subject to the power conferred by section 189 below, the local statutory provisions relating to the functions transferred by this subsection and everything done by or in relation to a water authority under any such provision shall have effect, so far as may be necessary for the purposes of, or in connection with, the transfer of functions under this subsection, as if—
    1. (i) any reference in any such provision to a water authority were a reference to the Authority; and
    2. (ii) any such thing had been done by or in relation to the Authority.").

The noble Baroness said: My Lords, this amendment transfers to the NRA powers or savings related to water authorities' functions under extant local Acts.

Water authorities have sometimes needed to promote Private Bills to undertake major flood defence schemes. This amendment transfers powers to carry out such works to the NRA who, under the provisions of this Bill, will take on the water authorities' flood defence and land drainage functions.

Water authorities also enjoy savings under some local Acts, for example those concerning construction of harbours or major bridges, to protect their flood defence interests. The amendment would transfer such savings to the NRA.

This is a straightforward, tidying-up measure and I commend it to your Lordships.

On Question, amendment agreed to.

Schedule 15 [Amendments of the Land Drainage Act 1976]:

[Amendment No. 132N not moved.]

Clause 136 [Establishment of regional flood defence committees]:

The Earl of Caithness moved Amendment No. 133: Page 141, line 22, after ("of) insert ("the following, none of whom shall be a member of the Authority, that is to say").

On Question, amendment agreed to.

[Amendment No. 134 not moved.]

Clause 140 [Functions of Authority in relation to fisheries]:

The Earl of Radnor moved Amendment No. 135: Page 146, line 21, at end insert ("are not members of the Authority but").

The noble Earl said: My Lords, this amendment is similar to one which I moved earlier. It concerns the question of whether members of the National Rivers Authority should sit upon their own advisory bodies. I beg to move.

Baroness Trumpington

My Lords, earlier in Report stage your Lordships accepted similar amendments relating to membership of regional rivers advisory committees in Clause 2, and regional flood defence committees in Clause 136. The Government have no difficulty in accepting this amendment regarding the fishery advisory committees. I commend it to the House.

The Earl of Radnor

My Lords, I am grateful for the words of my noble friend.

On Question, amendment agreed to.

The Earl of Radnor moved Amendment No. 136: Page 146, line 25, at end insert— ("(1A) As part of its duties under subsection (1)(a) above, the Authority shall not rear fish for the purpose of stocking fisheries unless such suitable fish are unavailable from any other sources").

The noble Earl said: My Lords, under Clause 140 the National Rivers Authority is required to look after all fisheries, whether they concern eels, fresh water fish etc. This amendment says that if they have to stock rivers in order to perform their duties they should not farm fish unless there are no fish available from any other source.

I repeat that I am a fish farmer. My fish all leave the farm dead, and I do not think that that would be of much use to my noble friend Lord Crickhowell.

There are fish farms all over the British Isles. It is probable that in nine cases out of 10 the needs of the NRA can easily be supplied on a proper commercial basis. However, what is worrying is that the National Rivers Authority is in charge of abstraction licences and discharge consents.

In Committee, during debate on an amendment about the cost of abstraction licences in particular, and discharge consents, I asked whether the cost of the licences would relate directly to the cost of adminstering them. My noble friend on the Front Bench gave me a fairly good answer but at the end he rather spoilt it and left me in some doubt as to the scale that those licences would reach. To my mind it is an open-ended matter. The NRA will be drawing money from fish farmers, and it can do with it whatever it pleases.

We now have the situation where the NRA, under its duties to look after fisheries, has fish farms of its own. Two things follow from that. First, we return to the gamekeeper/poacher syndrome, because presumably the NRA would have to grant themselves an abstraction licence and cost it, and a discharge consent. There would be very considerable suspicion among fish farmers, or a resentment, whether right or wrong, that the money that they have paid for their licences is being used in direct competition with them by reason of the NRA having its own fish farms in order to discharge its proper duties.

I worded the amendment carefully so that the NRA can have fish farms and breed fish if nothing suitable is available. That seems to be a reasonable way of solving the problem.

It may wish to experiment or breed different kinds of fish. I do not know whether or not that is desirable, but it would be covered by the fact that those kinds of fish would not be available. Therefore it would be reasonable for it to breed its own fish.

This is a sensitive matter with fish farmers. I know that my noble friend will consider it very carefully. It is wise to think of something along these lines to obviate the future friction and suspicion, which I am sure will occur.

The Earl of Balfour

My Lords, the river purification authorities of Scotland have often restocked fish, particularly brown trout, which are not normally produced in fish farms. They have done a marvellous job when there has been an accident and a lorry has driven off of a road and spilt all sorts of muck into the rivers. The work that has been done in Scotland has been very much appreciated. I have never heard anybody object to any of the Scottish river purification authorities restocking rivers. I should not like the National Rivers Authority for England and Wales to be restricted in any way.

The Earl of Cranbrook

My Lords, as a member of the Anglian Water Authority, I have been extremely impressed by some of the very sensitive fish-rearing programmes that have been instituted by that authority. I recognise that the subject may be sensitive and that my noble friend Lord Radnor does not wish to see a public authority set up in competition with a private fish-rearing enterprise.

One of the features of the Anglian Water fisheries rearing activities is something that is known as ORSU which, so far as I remember, stands for off-river supplementation unit. This is an extremely imaginative and sensitive way of rearing fish for re-stocking under natural circumstances. It is an extremely valuable way of preserving genetic resources of fish from a locality. The amendment tabled by my noble friend Lord Radnor refers to rearing fish, for the purpose of stocking fisheries". That is clearly what is happening in these ORSUs. I feel that his amendment goes far wider than the anxieties that he no doubt feels. I hope that the amendment will not be accepted in its present form. It is too inhibiting for some of what I regard as excellent work, both biologically and in terms of conservation and good fisheries management, being done by the water authorities.

Baroness Trumpington

My Lords, Amendment No. 136 would mean that the NRA could only rear fish for stocking fisheries if suitable fish are not available elsewhere. I wonder whether my noble friend realises that the amendment would not place any restrictions on the NRA from farming fish for the table. I assume that he would not wish it to do that.

The Earl of Radnor

My Lords, surely farming fish for the table has nothing to do with the duties to keep fisheries in good order, has it?

Baroness Trumpington

My Lords, I am informed that my noble friend's amendment would not prevent that from being undertaken. I have great difficulty in accepting the principle of this amendment. I am very grateful to my noble friends Lord Balfour and Lord Cranbrook for what they have said. The amendment would mean that the NRA was never able to farm its own fish all the while "suitable" fish were available elsewhere. I think my noble friend would, on reflection, have to agree that this would create the most anti-competitive seller's market imaginable.

Fish farms would be able to charge what they liked for their fish. The NRA would not have the option of producing those fish themselves. The authority's choice would be a stark one. It could either decide not to buy, which would mean fisheries went unstocked and the NRA could be failing in its duty to maintain, improve and develop fisheries. Alternatively, it could buy the fish at whatever price the fish farmer names. Neither choice would be in the best interests of fisheries.

My noble friend asked about abstraction licences and discharge consents. The scale of fees for abstraction licences has still to be settled. The concerns of fish farmers are well known. I hope that what I have just been saying has swayed my noble friend into deciding to withdraw his amendment.

The Earl of Radnor

My Lords, at least I am happy that once more the feelings of fish farmers are made well known. I cannot agree with many of the things that my noble friend said. I admit that in my heart of hearts there is a lurking feeling that the NRA should have this capability. I hope that it will use its fish farming side, however large it is, with great care. I believe it is in its own interests not to have ill feeling that can so easily brew up between fish farmers and the NRA when they should be complementary to each other. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137 not moved.]

7.15 p.m.

Clause 146 [Powers of entry etc.]:

Baroness White moved Amendment No. 137A: Page 150, line 32, at end insert— ("(5) For the purpose of this section "reasonable time" shall mean such time as is necessary to gain entry into any premises or vessel for the purpose of discharging the functions of the Authority under any enactment to which this section applies.").

The noble Baroness said: My Lords, I have tabled this amendment because it has been brought to my notice that there is some concern in a number of the NRA's regional rivers divisions as to the possible interpretation of the rights of entry that are conveyed in Clause 146. It will be part of the regulatory function of the NRA to enter sewage treatment works on a regular basis to take routine samples of water and effluent in order to check compliance with standards and with consents.

If the authority cannot be guaranteed unhindered access to these works then the fear is that the results obtained will not be truly representative. A more serious situation arises where a pollution incident is suspected and the NRA needs to obtain formal samples with a view to possible prosecution. It will be essential that the authority should be in a position to enter premises without advance notice and at a time when it is considered appropriate to obtain the necessary evidence.

If there is confusion as to the interpretation of the authority's powers under the Bill as it now stands, this will seriously erode its enforcement role. It is for this reason that it is proposed that "reasonable time" shall be construed according to the circumstances of each particular incident. Otherwise it will often prove impossible to obtain the necessary evidence to pursue a successful prosecution.

It has also been pointed out to me that many sewage treatment works are unmanned and that access to such sites may be extremely important. I understand that local negotiations are taking place already in some regions, but again the authority's powers of access must be clearly understood by sewerage undertakers. It has been suggested to me that where a sewage works is left unmanned for a considerable period of time the NRA will expect to have keys in order to exercise its right of access.

Further, it is known that water treatment works often discharge plant effluent on a sporadic basis. For example, cleaning work involving changes of dirty filters will generally be carried out at night. This may lead to a polluting discharge into the river. Again, immediate and unimpeded access is absolutely essential. I hope that these considerations have been carefully considered by the Minister who is to reply and that full account can be taken of them. I hope that the proposed amendment is suitable to meet the difficulties that I have described.

Perhaps I may make one other comment. The words used in Clause 146(3) are identical to words used in Clause 59(3) at page 70. The latter clause deals with the powers of entry of local authorities. The functions of local authorities are quite different from those of the National Rivers Authority. Prosecutions of the kind that have been mentioned for dealing with particular immediate difficulties are not really applicable to local authorities. For that reason it did not appear necessary in any way to propose amendments to Clause 59. However, it appears to me that an amendment to Clause 146 is highly desirable. I beg to move.

The Earl of Cranbrook

My Lords, when I read Clause 146(3) with the activities of the water authorities in mind, I understood that the term "reasonable time" meant a reasonable time of the clock or a reasonable time of the day. Except in an emergency it would be normal practice to consider it unreasonable to exercise the power of entry other than between, let us say, the hours of nine o'clock and five o'clock. In an emergency, occasionally it will be necessary to go in at any time of the day. There might be variations, as the noble Baroness mentioned, in relation to the nature of the premises. It seems to me that the amendment refers to time duration rather than to time o'clock, which is what I take to be the issue.

The Earl of Arran

My Lords, as the noble Baroness has pointed out, this amendment concerns the limitation placed upon the time at which the NRA may seek to gain admission to premises for the purpose of the pollution control responsibilities. Clause 146 says that it must be "a reasonable time", and the amendment seeks to make clear that this can be interpreted as reasonable in terms of the NRA function and the purpose for which it is seeking entry.

We believe that the Bill already covers this point, and that "reasonable" must be judged as to include appropriate NRA functions and particular purposes in securing entry. Thus if the technically right time to sample an effluent is outside the discharger's working hours, then it is still reasonable that the NRA be given admission at the inconvenient time. But while we think the amendment is unnecessary, we shall consider the question further, and if we conclude that there is any doubt on the matter, we shall come back to the House with an amendment. In those circumstances, I hope that the noble Baroness will be content to leave the issue on that basis.

Baroness White

My Lords, I am grateful to the noble Earl for what he has said, and I shall be happy if the Government take time to consider further this matter. I would not have thought of putting down the amendment had I not been approached by those who are anxious about the possible difficulties that might arise if there were a lack of clarity about the interpretation of Clause 146. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ezra moved Amendment No. 138: After Clause 147, insert the following new clause:

.—(1) Where an analysis of samples of water or effluent taken for the purposes of Chapter 1 of Part III to this Act reveals that an offence may have been committed under section 106 above, the Authority, unless it considers it unreasonable to do so, shall take or require to be taken samples of the effluent concerned in accordance with section 147 above on the next two occasions that samples are to taken of that effluent. (2) Where a person is convicted of an offence on the evidence of samples taken under the provisions of subsection (1) above the court may, in addition to any other order it may make, order that person to pay the reasonable cost incurred in taking any samples for the purposes of that subsection.").

The noble Lord said: My Lords, this amendment, which proposes a new clause after Clause 147, is an amended version of an amendment which I moved in Committee on 23rd May at cols. 269 to 272 of the Official Report. It has been amended to take full account of the Government's objections to the wording of the amendment at that stage. The Government objected to the fact that the NRA should have to take full samples in every case. Hence the words, unless it considers it unreasonable to do so", have been introduced to safeguard the NRA's position in that respect. The Government also objected to the NRA having to take five such samples as that was considered to be too expensive; so in this case we have proposed two.

The rationale for the amendment remains the same. We seek to ensure that the power of private prosecution is not negated because most people do not have the power to enter on to land and to take samples. We very much hope that, in this amended form and in view of the fact that the noble Lord, Lord Hesketh, in speaking on behalf of the Government on the previous occasion, said that they had some sympathy with the amendment, the Government will be prepared to accept it. I beg to move.

The Earl of Caithness

My Lords, I immediately pay an acknowledgement to the noble Lord for the changes that he has made which in part reflect the concerns which we expressed earlier. However, he has not taken on board our fundamental concerns. We believe that this is an area in which the NRA must be left to reach an appropriate conclusion in the particular circumstances of each case. Given that prosecution may follow, it is surely supremely an area where discretion should be left to the enforcement authority and where the appropriate steps should be decided on a case-by-case basis.

That said, I can repeat the earlier assurances that I have given. The NRA will have an obligation under the Bill to take such numbers of tripartite samples as is necessary for effective enforcement of the legislation. Tripartite samples are essential for prosecution, and the NRA will have to ensure that the option of prosecution is kept available whenever appropriate and whether the prosecution is by the authority or some third party.

I feel sure that in these circumstances the noble Lord will agree with me that there is no fear that sufficient tripartite samples will not be taken.

Lord Ezra

My Lords, I thank the noble Earl for his comments and for the assurances that he has given. I am sorry that he was not prepared to accept the amendment where efforts were made to take account of what we thought to have been the Government's objections to the previous proposal. However, I should like to study carefully what he has said and perhaps come back to it at the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150 [Compulsory purchase etc.]:

The Earl of Caithness moved Amendment No. 139: Page 153, line 7, leave out subsections (7) and (8).

On Question, amendment agreed to.

Lord Stanley of Alderley moved Amendment No. 139A: Page 153, line 14, at end insert— ("Where the land to be disposed of is to be used for commercial purposes incidental to the statutory purposes for which it was originally acquired, the land shall first be offered for sale to the person from whom it was originally acquired, or their successors in title, at a value to reflect the restrictions on the use under which the original compensation was calculated.").

The noble Lord said: My Lords, in Committee (at col. 328 of the Official Report) I raised the question of what was incidental commercial development. At col. 329 my noble friend Lord Caithness said that such a phrase was difficult to define but that land originally acquired under compulsory purchase order at existing use value might then be available for some other purpose. He gave as an example an hotel. I commented at the time that I found his reply interesting. I am now no wiser as to what his definition means as I was then at two o'clock in the morning.

I hope that this amendment will solve my noble friend's problems by stating the Crichel Down principle. If land became available for such purposes as an hotel or a duty free shop, that land should be offered back to the original owner who of course would be free to negotiate with the developer. It is only fair for the original owner to be offered this ability to make a profit. Indeed it was stated by my honourable friend Mr. Howard in Committee in another place on 2nd March (at col. 1511 of the Official Report). He said: The terms of any general authorisation have yet to be settled but we are considering a formula that would require water companies to have regard in appropriate circumstances to the Crichel Down rules".

If a water plc merely transfers the land to commercial use to, for example, Land Leisure, the company which Welsh Water is setting up as a subsidiary, we shall have a problem over the Crichel Down principle. However, I should not have thought that it is insoluble.

My noble friend has made much play of the proposed consultation paper on compensation. I hope he will now be able to say that, bearing in mind the difficulty we are having in coming to a decision on what is or what is not "incidental commercial development"—the Government's phrase—in particular in regard to the Crichel Down point which I mentioned, he will now include in that consultation paper the basis of compensation. It seems illogical that the Government will not concede this essential need in their consultation paper. I beg to move.

Lord McIntosh of Haringey

My Lords, perhaps I may seek to worm my way back into the favour of the noble Lord, Lord Stanley, by saying that I support the principle of the amendment. I thought that the Crichel Down principle had been well covered in the amendments moved by the Government last week. If I am wrong about that, the noble Lord's amendments certainly deserve the support of the House.

Lord Monk Bretton

My Lords, all the time the Government plan to stick to the fundamental compulsory purchase rule of Section 5(3) of the 1961 Act, which is not a popular basis at all—not only in my view but in that of many others. What my noble friend suggests is an extremely important palliative, which would help matters considerably. I think that the Government will have difficulty in persuading the public—especially the property-owning public—to the view that there is no difference between compulsory purchase for a nationalised industry and that for a public utility company. As a matter of political judgment, they will have difficulty over that issue. That is why I believe that this palliative is a most significant one.

The Earl of Cranbrook

My Lords, I should like to make a few remarks from the operational point of view. Land may be compulsorily purchased, let us say, to create a reservoir. It would be natural for the plc to be required under the terms of this legislation to run recreational facilities and fisheries on that reservoir, and to do so on a commercial basis. That situation appears to be caught by the very wide reference to, Commercial purposes incidental to the statutory purposes for which it was originally acquired", contained in the amendment proposed by my noble friend Lord Stanley.

Let us consider another set of circumstances. Let us suppose, for example, that land to build a sewage treatment works is acquired by compulsory purchase. A sewage treatment works may—as have some sewage treatment works in Anglia—develop a very cunning process for utilising sewage sludge by turning it into a compost and selling it. That is advantageous both environmentally and economically. However, it is again caught by these wide terms of incidental commercial activities.

Therefore, from the operational point of view, when the plcs are in future conforming to the many duties which they are required to carry out, they may be caught by an amendment which is so very wide in its terms.

7.30 p.m.

The Earl of Caithness

My Lords, it is intended that a general authorisation will be issued to each undertaker and to the NRA requiring disposals to be made in accordance with the Crichel Down rules. So far I think that we are all on the same side. However, I must now put a stop to the unseemly behaviour of the noble Lord, Lord McIntosh of Haringey, who wishes to get back into favour with my noble friend Lord Stanley of Alderley. I hope that he realises that this amendment is not really about the principle of disposal; it is about the price to be obtained in a very limited set of circumstances. Indeed, I suspect that the amendment is really more about the compensation payable on compulsory purchase, which we debated fully in Committee, than it is about disposals.

As I explained in Committee, the basis for compensation for the compulsory acquisition of land is that the landowner receives the market value of the land, including any value attributable to the prospect of the development but excluding any value arising only from the scheme for which the land is being taken. This is fair, because it is what the land would have fetched for the owner had he chosen to sell it if there had been no compulsory purchase.

The general rule when a public authority disposes of land is that it should obtain the best price reasonably obtainable. This rule has applied even in the cases where land is offered back to a former owner under the Crichel Down rules. Where the character of the land or its surroundings has changed it is therefore possible that when compulsorily acquired land is offered back its market value will have changed substantially from the value on which compensation was based. But provided that the original compensation was fair there is nothing unfair about asking the former owner to pay the changed market price. The fact that he might have benefited from the change in value had he been able to retain ownership of the land is not relevant since he had been free to reinvest his compensation in similar land and the particular changes in the value of the compulsorily acquired land were outside his control.

Therefore, what the noble Lord, Lord McIntosh, is doing, is supporting my noble friend Lord Stanley who wants to increase the bonus to a farmer.

Lord McIntosh of Haringey


The Earl of Caithness

My Lords, I recognise that my noble friend's amendment is concerned only with the limited case where land has been acquired for a statutory purpose and is then disposed of because it is no longer needed for that purpose but has acquired value because it can be used for a commercial purpose which is incidental to the statutory purpose. But, it is unlikely to be the case that land will simply become surplus and available for an incidental purpose without having first been used for the purpose for which it was acquired.

The intention of the amendment also runs counter to the policy announced last week on the price and proceeds from land disposals. As my noble friend Lord Hesketh explained, the intention is to enable customers to benefit from the net receipts from future disposals of land. In disposing of land, water and sewerage undertakers will be required to demonstrate that the best price reasonably obtainable has been obtained. That would not be achieved if the benefit of changes in land use and planning permissions were to be ignored in determining the disposal price, as my noble friend proposes by way of his amendment.

To sum up, the landowner is fairly compensated under the land compensation code when compulsory acquisition takes place. It is right, as is recognised by the Crichel Down rules, that if the land is surplus to requirements it should be offered back to the landowner. But since he was fairly compensated in the first place, there is no reason to give him any discount on the open market value of the land when it is offered back.

Lord Stanley of Alderley

My Lords, I must say to the noble Lord, Lord McIntosh, that the Crichel Down rules have been looked at most carefully in the past. However, I was trying to suggest to the House that they could perhaps be used with benefit as regards this problem over "incidental commercial development", which the Government have been offering to landowners as a kind of palliative to all the ills in the world.

I see the problem that this proposal would pose. Moreover, as my noble friend Lord Cranbrook pointed out, I think that the amendment is too wide. I fully take the point which he made. However, he emphasised the point which my noble friend did not answer. It is a complicated and difficult problem. The Government have commissioned a consultation paper on compensation. But the one thing which they will not allow as regards that paper is discussion in relation to this very matter. Indeed, they will not allow consultation on the basis of compensation. It seems to me to be quite ridiculous.

I shall not ask my noble friend to break the rules of the House and reply again, but I shall ask him to take the matter away and think about it.

Lord McIntosh of Haringey

My Lords, I do not even wish to bend the rules of the House, but I have been referred to in the last two speeches. I am bound to say that I am convinced by what the Minister said, even if by saying that I forfeit the friendship of the noble Lord, Lord Stanley.

Lord Stanley of Alderley

My Lords, I take the noble Lord's point. All I can say is that it seems quite impossible for me to remain friends with the noble Lord, Lord McIntosh, and my noble friend on the Front Bench. However, I may go to Heaven because it seems that I have made friends with both of them by moving this amendment. Nevertheless, in all seriousness, I ask my noble friend on the Front Bench to think seriously about trying to alter the rules as regards the consultation paper so as to include discussion on the basis for compensation.

In the meantime, although it is somewhat earlier than yesterday when my noble friend and I met to take tea and solve some problems, I think that it may be better if we tried to solve the present problem over supper tonight. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 140: After Clause 150, insert the following new clause:

("Restriction on disposals of land

.—(1) The Authority shall not dispose of any of its compulsorily acquired land, or of any interest or right in or over any of that land, except with the consent of, or in accordance with a general authorisation given by, the Secretary of State or the Minister. (2) A company holding an appointment under Chapter I of Part II of this Act shall not dispose of any of its protected land, or of any interest or right in or over any of that land, except with the consent of, or in accordance with a general authorisation given by, the Secretary of State. (3) A consent or authorisation for the purposes of this section shall be set out in a notice served by the Secretary of State or the Minister on the person who is or may be authorised, by virtue of the provision contained in the notice, to dispose of land or of interests or rights in or over land or, as the case may be, on every such person. (4) A consent or authorisation for the purposes of this section may be given on such conditions as the Secretary of State or, as the case may be, the Minister considers appropriate. (5) Without prejudice to the generality of subsection (4) above, the conditions of a consent or authorisation for the purposes of this section may include—

  1. (a) a requirement that, before there is any disposal, an opportunity of acquiring the land in question, or an interest or right in or over that land, is to be made available, in such manner and on such terms as may be specified in or determined under provision contained in the notice setting out the consent or authorisation, to such person as may be so specified or determined;
  2. (b) a requirement, in the case of a consent or authorisation for the purposes of subsection (2) above, that the company making the disposal has complied with such of the conditions of its appointment under Chapter I of Part II of this Act as relate to the disposal of its protected land or of any interest or right in or over that land;
  3. (c) a requirement that such a company, before making a disposal in a case in which the land in question is situated in a National Park, in the Broads or in a designated area, should do one or both of the following, that is to say—
    1. (i) consult with the Countryside Commission; and
    2. (ii) enter into such agreements under section 39 of the Wildlife and Countryside Act 1981 (management agreements) or such covenants under subsection (6) below as the Secretary of State may determine;
  4. (d) provision requiring determinations under or for the purposes of the consent or authorisation to be made, in such cases as are mentioned in paragraph (c) above, either by the Countryside Commission or only after consultation with that Commission.
(6) Where a company holding an appointment under Chapter I of Part II of this Act is proposing, in such a case as is mentioned in subsection (5)(c) above, to dispose of, or of any interest or right in or over, any of its protected land, it may enter into a covenant with the Secretary of State by virtue of which it accepts obligations with respect to—
  1. (a) the freedom of access to the land that is to be afforded to members of the public or to persons of any description; or
  2. (b) the use or management of the land;
and a covenant under this subsection shall bind all persons deriving title from or under that company and shall be enforceable by the Secretary of State accordingly. (7) Section 8 above shall have effect for the purposes of this section as if every proposal which—
  1. (a) is made by a water undertaker or sewerage undertaker with respect to land in a National Park, in the Broads or in a designated area or with respect to any interest or right in or over any such land; and
  2. (b) is a proposal for which the Secretary of State's consent or authorisation is required under this section,
were a proposal relating to the functions of that undertaker. (8) In this section "compulsorily acquired land", in relation to the Authority, means any land of the Authority which—
  1. (a) was acquired by the Authority compulsorily under the provisions of section 150 above or of section 153 below;
  2. (b) was acquired by the Authority at a time when it was authorised under those provisions to acquire the land compulsorily;
  3. (c) being land which has been transferred to the Authority in accordance with a scheme under Schedule 2 to this Act, was acquired by a predecessor of the Authority compulsorily under so much of any enactment in force at any time before the transfer date as conferred powers of compulsory acquisition; or
  4. (d) being land which has been so transferred, was acquired by such a predecessor at a time when it was authorised to acquire the land by virtue of any such powers as are mentioned in paragraph (c) above.
(9) In this section— the Broads" has the same meaning as in the Norfolk and Suffolk Broads Act 1988; and designated area" means any area which—
  1. (a) is for the time being designated as an area of outstanding natural beauty for the purposes of the National Parks and Access to the Countryside Act 1949; or
  2. (b) is for the time being designated by an order made by the Secretary of State by statutory instrument as an area in relation to which this section should apply as if it were in a National Park, the Broads or an area of outstanding natural beauty.").

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 140A to 143F not moved.]

The Earl of Arran

My Lords, I think that the House may feel that this is a convenient moment at which to break for dinner. I suggest that we return to the Report stage of the Bill at 8.40 p.m. I beg to move that further consideration on Report be now adjourned.

Moved, accordingly, and, on Question, Motion agreed to.